THE STATE OF BIHAR AND ORS. versus KIRTI NARAYAN PRASAD on 30 November 2018

1. Some of the appeals out of the aforesaid group of matters havebeen filed by the State of Bihar challenging the order of the High Courtof Judicature at Patna, whereby the Division Bench has confirmed theorder of the learned Single Judge directing reinstatement of the writpetitioners therein on their respective posts with all consequential benefitsin terms of the order dated 6.10.2009 in CWJC No. 6575 of 2009 andanalogous cases. In CWJC No. 6575 of 2009 and other connectedmatters, learned Single Judge while allowing writ petitions has directedreinstatement of the writ petitioners therein from the date of theirtermination on the post, they were working with all consequential benefits.The Letter Patent Appeals filed by the State of Bihar challenging thesaid order have been dismissed by the Division Bench of the High Courtholding that the writ petitioners have been working continuously for morethan ten years without protection of any interim orders of the Court and

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ATribunal. It was further held that in view of the Constitution Benchjudgment of this Court in Secretary, State of Karnataka and othersv. Umadevi (3) and others, 2006 (4) SCC 1 and in State of Karnatakaand others v. M.L. Kesari and others, 2010 (9) SCC 247, thetermination order issued against the writ petitioners cannot be said to belegal. Accordingly, LPAs have been dismissed. These orders have alsoBbeen challenged by the State of Bihar in this group of appeals.

2. In the other connected matters, the Division Bench of the PatnaHigh Court has allowed the LPAs and the writ petitions filed by thepetitioners therein have been dismissed holding their appointment as nonCest and void ab initio.3. Since a common issue has been raised in all these appeals, theyare 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 BiharDunder the orders made by the concerned Civil Surgeon-cum-ChiefMedical Officer of the district. None of the writ petitioners was appointedthrough a proper legal recruitment process. They were posted in ClassIII or Class IV service in a primary health centre within the jurisdictionof the civil surgeon. The State Government having realised the largescale irregularities committed in the appointment by the concerned CivilESurgeon-cum-Chief Medical Officer, scrutinized all the appointments.The State Government having found that large number of appointmentswere made on the basis of false or forged documents, without followingdue process of recruitment and mostly without the appointment orders,cancelled such appointments and the concerned incumbents wereFdischarged from service. Those orders of discharge were challengedbefore the Patna High Court. The High Court by a common judgmentand order set aside the impugned orders of discharge from service solelyon the ground of violation of the principles of natural justice. All the writpetitioners were directed to be reinstated in service without the salary orremuneration for the interregnum period.G

6. Thereafter, the State Government initiated proceedings toterminate the services of such employees by issuing show cause noticeand calling upon each of them to establish legality of their respectiveappointment. The writ petitioners failed to establish the legality of theirappointment. Once again their services were terminated. FeelingHaggrieved, the writ petitioners challenged the said orders before the High THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD[S. ABDUL NAZEER, J.]

Court, which eventually reached the Division Bench in Letter PatentAppeals. The Division Bench noticed that the writ petitioners wereappointed in Class III or Class IV service and were serving as such fora long time. They had claimed the benefit of regularisation in service.In view of the judgment of this Court in Umadevi (supra), the DivisionBench in State of Bihar v. Purendra Sulan Kit, reported in 2006 (3)PLJR 386, directed the State Government to find out which of theaffected employees are entitled for regularisation. The direction of theDivision Bench is as under:

“All the Letters Patent Appeals whether preferred by the Stateor by affected employees and all the Writ Petitions preferred bythe affected employees are hereby disposed of by this commonjudgment and order with a direction to the authorities of the HealthDepartment, Government of Bihar to reconsider the cases of allthe affected employees with a view to find out on the basis ofrelevant facts and law as settled by the Constitution Bench in thecase of Secretary, State of Karnataka vs. Uma Devi (supra)as to which of such affected employees are fit for regularisationin terms of that judgment, particularly in terms of paragraph 44 ofthe judgment. Such exercise should be completed within a periodof six months from today. If for any good reason, the time periodis required to be extended then the respondent State must file anapplication for that purpose and seek extension from this Court.Till the process is completed, the State of Bihar and its authoritiesshall maintain status quo in respect of services of the affectedemployees as existing on date. The status quo shall get revisedby the orders that may be passed by the authorities in respect ofaffected employees as a result of the exercise to be undertakenby them and their final decision in the light of this judgment andorder.”

7. Pursuant to the aforesaid directions, the State Governmentconstituted a committee comprising of five officers (for short ‘StateCommittee’) to examine the facts of individual cases. However, twomembers of the said committee did not participate in the proceedings forthe reasons best known to them. So, it precipitated into committee ofthree members which carried out the aforesaid directions and submittedits report. The said committee issued show cause notice to each individual,considered the facts in each individual case and classified the saidemployees in three categories mentioned hereinbelow:

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A(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 appointmentswere eventually ordered to be regularised keeping in view the directionBin Umadevi (supra). Rest of the appointments being void ab initio,were cancelled and the services of the concerned employees wereterminated. The writ petitioners again challenged the order of terminationbefore the High Court. Some of the writ petitions were allowed. Againstsuch orders the State Government approached the Division Bench byfiling a group of Letter Patent Appeals. The Division Bench by a commonCjudgment and order, with the consensus of the learned advocates for theparties, referred the matter with detailed directions to a Committeecomprising Justice Uday Sinha (retired). These matters have beendealt with by Justice Uday Sinha (retired). He has made report in eachcase placed before him. Those matters are not the subject-matter of Dthis group of appeals. Writ petitions were filed by a group of appointeeschallenging the report of the State Committee before the High Court. Alearned Single Judge of the High Court allowed the said writ petitions.The respective orders made by the learned Single Judge were challengedby filing LPAs before the Division Bench. The Division Bench allowed some of the appeals. In some cases, the Division Bench directed theEState 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 submitsthat the writ petitioners are illegal appointees. Those whose appointmentswere found to be irregular by the committee constituted in pursuance ofFthe judgment and order of the Division Bench were distinct from thosewhose appointments were illegal and the same cannot be treated on thesame footing. Since, the appointments of the writ petitioners were foundillegal, their services were terminated after giving them an opportunityof hearing. The State Committee has examined the correctness ofappointment of each of the writ petitioners and found them to be illegal.GThe appointment of the writ petitioners have not been made against thevacant post by the competent authority. Their appointment was on non-sanctioned post by incompetent authority, without an advertisement andthat their appointment could not have been saved in terms of the judgmentin Umadevi (supra).H

THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD[S. ABDUL NAZEER, J.]

10. On the other hand, learned counsel appearing for the writpetitioners submitted that the writ petitioners have the requisitequalification for being appointed to the post in question. They have beenappointed by the committee constituted and headed by the RegionalDeputy Director considering their past health service experience andqualification and posted in different primary health centres and workedfor the past 2 to 3 decades. Their appointment is fully protected by thejudgment in Umadevi (supra) and M.L. Kesari (supra). Therefore, theycannot be terminated from service at this stage of their career, that toowithout holding any disciplinary enquiry against them.

11. We have carefully considered the submissions of the learnedcounsel for the parties and perused the materials placed on record.

12. It is not in dispute that the Government of Bihar in itsAdministrative Reforms department had issued instructions forappointment to Class III posts in the Government office under its circularNo. 16440 dated 03.12.1980. The said circular applies to Class III postsother than the posts which are filled in by appointment of candidatesselected by Bihar Public Service Commission after a competitiveexamination and to the posts which are governed by the Governmentresolution dated 28.01.1976. The said circular sets out a detailedprocedure for notifying the vacancies in Secretariat and its attachedoffices, District Magistrates and other Muffassil Offices and for callingfor applications, preparation of a common merit list and appointmentfrom the said common merit list in the order of merit. It also providesthe procedure for constitution of selection committee, preparation ofmerit lists and wait list, duration of merit lists and wait list. A similarcircular No. 16441 was also issued on 03.12.1980 for appointment toClass IV posts in the Muffassil Offices of the Government. Thesecirculars had been issued to avoid discrimination in appointment to ClassIII and Class IV posts in the Government offices and provide forgeneralized procedure in consonance with Articles 14 and 16 of theConstitution. The appointment of the writ petitioners have not beenmade in accordance with these circulars. Therefore, the contention ofthe learned counsel for the writ petitioners is that since the writ petitionershave served for more than 10 years and some of them have evencompleted 20 years of service, they ought to have been regularized interms of the judgment in Umadevi (supra) and M.L. Kesari (supra).

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A13. In Umadevi (supra) the Constitution Bench has held that unlessappointment is made in terms of the relevant rules and after a propercompetition among qualified persons, the same would not confer anyright on the appointee. If it is a contractual appointment, the appointmentcomes to an end at the end of the contract, if it was an engagement orappointment on daily wages or casual basis, the same would come to anBend when it is discontinued. A temporary employee could not claim to bemade permanent on the expiry of his term of appointment. It was alsoclarified that merely because a temporary employee or a casual wageworker is continued for a time beyond the term of his appointment, hewould not be entitled to be absorbed in regular service or made permanent,Cmerely on the strength of such continuance, if the original appointmentwas not made by following a due process of selection as envisaged bythe relevant rules. In paragraph 43 of Umadevi (supra), it was held asunder:

“43. Thus, it is clear that adherence to the rule of equality inDpublic employment is a basic feature of our Constitution and sincethe rule of law is the core of our Constitution, a court wouldcertainly be disabled from passing an order upholding a violationof Article 14 or in ordering the overlooking of the need to complywith the requirements of Article 14 read with Article 16 of theConstitution. Therefore, consistent with the scheme for publicEemployment, this Court while laying down the law, has necessarilyto hold that unless the appointment is in terms of the relevantrules and after a proper competition among qualified persons, thesame would not confer any right on the appointee. If it is acontractual appointment, the appointment comes to an end at theFend of the contract, if it were an engagement or appointment ondaily wages or casual basis, the same would come to an end whenit is discontinued. Similarly, a temporary employee could not claimto be made permanent on the expiry of his term of appointment. Ithas also to be clarified that merely because a temporary employeeor a casual wage worker is continued for a time beyond the termGof his appointment, he would not be entitled to be absorbed inregular service or made permanent, merely on the strength ofsuch continuance, if the original appointment was not made byfollowing a due process of selection as envisaged by the relevantrules. It is not open to the court to prevent regular recruitment atHthe instance of temporary employees whose period of employment H

THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD[S. ABDUL NAZEER, J.]

has come to an end or of ad hoc employees who by the verynature of their appointment, do not acquire any right. The HighCourts acting under Article 226 of the Constitution, should notordinarily issue directions for absorption, regularisation, orpermanent continuance unless the recruitment itself was maderegularly and in terms of the constitutional scheme. Merelybecause an employee had continued under cover of an order ofthe court, which we have described as “litigious employment” inthe earlier part of the judgment, he would not be entitled to anyright to be absorbed or made permanent in the service. In fact, insuch cases, the High Court may not be justified in issuing interimdirections, since, after all, if ultimately the employee approachingit is found entitled to relief, it may be possible for it to mould therelief in such a manner that ultimately no prejudice will be causedto him, whereas an interim direction to continue his employmentwould hold up the regular procedure for selection or impose onthe State the burden of paying an employee who is really notrequired. The courts must be careful in ensuring that they do notinterfere unduly with the economic arrangement of its affairs bythe State or its instrumentalities or lend themselves the instrumentsto facilitate the bypassing of the constitutional and statutorymandates.”

(Emphasis supplied)

14. However, in paragraph 53 an exception is made to the generalprinciples against regularisation as a one-time measure which is as under:

“53. One aspect needs to be clarified. There may be cases whereirregular appointments (not illegal appointments) as explained inS.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajanand referred to in para 15 above, of duly qualified persons in dulysanctioned vacant posts might have been made and the employeeshave continued to work for ten years or more but without theintervention of orders of the courts or of tribunals. The questionof regularisation of the services of such employees may have tobe considered on merits in the light of the principles settled by thisCourt in the cases abovereferred to and in the light of this judgment.In that context, the Union of India, the State Governments andtheir instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who AB

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412 SUPREME COURT REPORTS [2018] 14 S.C.R.

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Ahave worked for ten years or more in duly sanctioned posts butnot under cover of orders of the courts or of tribunals and shouldfurther ensure that regular recruitments are undertaken to fill thosevacant sanctioned posts that require to be filled up, in cases wheretemporary employees or daily wagers are being now employed.The process must be set in motion within six months from thisBdate. We also clarify that regularisation, if any already made, butnot sub judice, need not be reopened based on this judgment, butthere should be no further bypassing of the constitutionalrequirement and regularising or making permanent, those not dulyappointed as per the constitutional scheme.”

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15. In some of the LPAs the Division Bench appears to havefollowed paragraph 11 in M.L. Kesari (supra) for directing regularisationof service without considering the observations contained in paragraph7 of the judgment. In paragraph 11, it was observed that “the true effectof the direction is that all persons who have worked for more than tenDyears as on 10.4.2006 [the date of decision in Umadevi (3)] without theprotection of any interim order of any court or tribunal, in vacant posts,possessing the requisite qualification, are entitled to be considered forregularisation within six months of the decision in Umadevi (3) as a one-time measure …………”. However, in paragraph 7 after consideringUmadevi (supra) this Court has categorically held that for regularisation,Ethe appointment of employee should not be illegal even if irregular.

“7. It is evident from the above that there is an exception to thegeneral principles against “regularisation” enunciated in Umadevi(3), if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 yearsor more in duly sanctioned post without the benefit or protectionof the interim order of any court or tribunal. In other words, theState Government or its instrumentality should have employedthe employee and continued him in service voluntarily andcontinuously for more than ten years.

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(ii) The appointment of such employee should not be illegal,even if irregular. Where the appointments are not made orcontinued against sanctioned posts or where the persons appointeddo not possess the prescribed minimum qualifications, theappointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was workingagainst sanctioned posts, but had been selected without undergoingthe process of open competitive selection, such appointments areconsidered to be irregular.”

(Emphasis supplied)

16. In State of Orissa and Anr. v. Mamata Mohanty, (2011) 3SCC 436, this Court has held that once an order of appointment itselfhad been bad at the time of initial appointment, it cannot be sanctified ata later stage. It was held thus:

“68(i) The procedure prescribed under the 1974 Rules has notbeen followed in all the cases while making the appointment ofthe respondents/ teachers at initial stage. Some of the personshad admittedly been appointed merely by putting some note onthe notice board of the College. Some of these teachers did notface the interview test before the Selection Board. Once an orderof 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 petitionsbefore the High Court with a specific prayer to regularize their serviceand to set aside the order of termination of their services. They havealso challenged the report submitted by the State Committee. The realcontroversy is whether the writ petitioners were legally and validlyappointed. The finding of the State Committee is that many writ petitionershad secured appointment by producing fake or forged appointment letteror had been inducted in Government service surreptitiously by concernedCivil Surgeon-cum-Chief Medical Officer by issuing a posting order.The writ petitioners are the beneficiaries of illegal orders made by theCivil Surgeon-cum-Chief Medical Officer. They were given notice toestablish the genuineness of their appointment and to show cause. Noneof them could establish the genuineness or legality of their appointmentbefore the State Committee. The State Committee on appreciation ofthe materials on record has opined that their appointment was illegal andvoid ab initio. We do not find any ground to disagree with the findingof the State Committee. In the circumstances, the question ofregularisation of their services by invoking para 53 of the judgment inUmadevi (supra) does not arise. Since the appointment of the petitioners

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414 SUPREME COURT REPORTS [2018] 14 S.C.R.

Ais ab initio void, they cannot be said to be the civil servants of the State.Therefore, holding disciplinary proceedings envisaged by Article 311 ofthe Constitution or under any other disciplinary rules shall not arise.

18. Therefore, the Civil Appeals filed by the writ petitioners in theaforesaid batch of appeals are hereby dismissed. The Civil AppealsBfiled by the State of Bihar are allowed and the writ petitions filed beforethe High Court of Patna in the said cases are hereby dismissed. Thereshall be no order as to costs.

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Ankit Gyan

Appeals disposed of.

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