THE STATE OF BIHAR & ORS. versus DEVENDRA SHARMA on 17 October 2019

[2019] 15 S.C.R. 990

SUPREME COURT REPORTS

[2019] 15 S.C.R.

THE STATE OF BIHAR & ORS.

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v.

DEVENDRA SHARMA

(Civil Appeal No.7879 of 2019)

BOCTOBER 17, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Service Law: Appointments – Illegal appointments –Entitlement to salary or consequential rights of pension and othermonetary benefits – Held: Rights to salary, pension and other serviceCbenefits are entirely statutory in nature in public service – Theserights, spring from a valid and legal appointment to the post – Onceit is found that the very appointment is illegal and is non-est in theeye of law, no statutory entitlement for salary or consequential rightsof pension and other monetary benefits can arise – On facts, matterDpertaining to appointments against Class II or IV posts in the HealthDepartment in Government wherein Committee Report held theappointments to be irregular appointments, illegal appointments andappointments on forged letters and on basis thereof terminationorders were passed against the candidates who secured employmenton basis of forged documents and whose appointments were illegalEand irregular appointees were allowed to continue – In writ petitionthereagainst, the Committee Report was quashed with direction tore-instate the employees – As regards irregular appointment, itcannot be said that the appointment of the employees were irregularappointments but are illegal appointment – As such appointmentsFwere made without any sanctioned post, without any advertisementgiving opportunity to all eligible candidates to apply and seek publicemployment and without any method of recruitment – Suchappointments were backdoor entries, an act of nepotism andfavoritism and thus from any judicial standards cannot be said tobe irregular appointments but are illegal appointments in whollyGarbitrary process – Furthermore, since employees have been workingfor around 25 years, it cannot be said that humanitarian view shouldbe taken to set aside the termination order and regularise theirservices so as to make them entitled to pension and other retirementbenefits.

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Allowing the appeals by the State and dismissing the appealsby the candidates, the Court HELD: 1.1 There is no statutory rule in terms of provisoto Article 309 of the Constitution for appointment to Class IIIand Class IV categories in the State. The matter of appointmentis regulated by the Executive instructions. Chapter I of the BiharHealth Manual deals with Organisation and functions of the HealthDepartment of the State. It was pointed out that from May 1,1953, the Medical and the Public Health Departments wereamalgamated into one department called the Department of Healthunder the Director of Health Services. It was pointed out thatthe Director of Health Services is the appointing authority inrespect of all non–gazetted appointments in the departmentincluding the Subordinate Medical Service. To assist the Director,there is one Additional Director and three Deputy Directors alongwith other gazetted officers including Assistant Directors of HealthServices (M. and C.H.). [Para 24] [1010-B-D]

1.2 A circular was issued by the State on September 5, 1979with regard to retrenchment of Government/Semi–Governmentemployees appointed on category III and IV temporary posts onad–hoc basis. Thereafter, separate circulars were issued providingfor procedure for appointment on category III and IV posts onDecember 3, 1980. Similar is the circular in respect ofappointment to Category IV post. On January 20, 1992, the Stateissued a circular regarding transfer and posting of Class III andClass IV employees of Health Department and it was decidedthat the employees shall be decentralized at the District level. Itwas communicated that transfer and posting as far as possibleshall remain within the jurisdiction of appointing officer. On thebasis of the abovesaid circulars and the Government Orders, itis argued that the appointing authority of Class III and Class IVposts is Director, Health Services. However, there was somedelegation in respect of certain other administrative matters butthere was no delegation in respect of appointment against ClassIII and Class IV category posts. The powers conferred onAssistant Director in terms of clause 13(c) of Chapter I of BiharHealth Manual empowers Assistant Director (Public Health) toappoint non–gazetted epidemic staff like Health Assistants and A

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AVaccinators against sanctioned posts but only in case ofemergency. A finding has been recorded in Ashwani Kumar’s casethat 2250 posts were sanctioned whereas 6000 appointmentswere made. The Tuberculosis eradication under the 20–PointProgramme was not an emergency activity which may empowerthe Assistant Director to make large number of appointmentsBbut again such emergent powers could be exercised only inrespect of sanctioned posts. [Paras 27–29] [1012-G-H;1014-D-E; 1015-C-E]

1.3 The exception in respect of appointing authority camewith the circular dated December 3, 1980 which contemplatedCthat suitable candidates be selected as per requirement fromcommon merit list by the competent authorities of Secretariatand attached offices; District Collector and equivalent Officer Incharge of the Divisional Offices. The Deputy Director–AM, inthe subordinate offices of the Directorate of Health Services wasDnot competent to make appointments against Category III orCategory IV posts in view of the provisions of the Manual as alsoin terms of the circular dated December 3, 1980 recorded by thisCourt in Ashwani Kumar as well. [Para 30] [1015-F-G]

1.4 Though, certain appointments have been made by Civil ESurgeon which is not disputed as he was the competent authoritybut it is submitted that none of the requirements to fill up thepublic post was adhered to. Appointments were made to the publicposts without following any procedure and without there beingany sanctioned post. It cannot be said that some of theappointments have been made by Regional Deputy Director asFfour posts of Assistant Director were converted into that ofRegional Deputy Director. The post of Assistant Director wasprovided in the Directorate of Health Services with no delegationof appointment except in the case of emergency against sanctionedposts. Such Regional Deputy Director has not been conferredGpower of appointment against Class III and Class IV posts.Therefore, the Assistant Director was incompetent to makeappointments against the sanctioned posts except in emergentcases 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 ofH2012, the respondent was appointed by Deputy Director–AM.

Such appointments have been found to be illegal by this Court inAshwani Kumar. There is no reason to re–examine theappointments made. Such appointments have been adverselycommented upon in Ashwani Kumar case. Therefore, no rightwill 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 workingfor many years, some for more than 25 years, therefore,humanitarian view should be taken to set aside the order oftermination and regularise their services so as to make thementitled to pension and other retirement benefits. Where the veryroot is non–existent, there cannot subsist a branch thereof in theshape of a claim to salary. The rights to salary, pension and otherservice benefits are entirely statutory in nature in public service.Therefore, these rights, including the right to salary, spring froma valid and legal appointment to the post. Once it is found thatthe very appointment is illegal and is non est in the eye of law, nostatutory entitlement for salary or consequential rights of pensionand 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 caseof irregular appointment. Such candidates are continuing inservice. None of the candidates in the instant set of appeals couldpoint out that they were appointed in a manner meant for fillingup of vacant post of public appointment i.e. by advertisement andby giving opportunity to all eligible candidates to apply.[Para 38] [1018-B]

1.8 It cannot be said that the appointment of the employeeswere irregular appointments. Such appointments are illegalappointment in terms of the ratio of Supreme Court judgment inUma Devi’s case. As such appointments were made without anysanctioned post, without any advertisement giving opportunity A

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Ato all eligible candidates to apply and seek public employmentand without any method of recruitment. Such appointments werebackdoor entries, an act of nepotism and favoritism and thus fromany judicial standards cannot be said to be irregular appointmentsbut are illegal appointments in wholly arbitrary process.[Para 44] [1020-G; 1021-A-B]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 orderspassed by the High Court cannot be sustained in law and, thus,Care set aside. There is no error in the order of the High Courtdated 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] 9DSCR 543;The State of Bihar & Ors. v. Binay KumarSingh & Ors. [2011] 3 PLJR 547 ;State of Bihar v.Kirti Narayan Prasad 2018 SCC OnLine SC 261;RamSevak Yadav & Anr. v. The State of Bihar & Ors 2013Lab IC 1607 (FB); Rita Mishra & Ors. v. Director,Primary Education, Bihar & Ors. AIR 1988 Patna 26;ER. 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 ;UnionFof India & Anr. v. Raghuwar Pal Singh (2018) 15 SCC463 : [2018] 4 SCR 1012;Nidhi Kaim & Anr. v. State ofMadhya Pradesh & Ors.(2017) 4 SCC 1 : [2017] 2SCR 527;Chairman and Managing Director, FoodCorporation of India & Ors. v. Jagdish Balaram Bahira& Ors.(2017) 8 SCC 670 : [2017] 11 SCR 271 –Greferred to.

Case Law Reference

[1996] 10 Suppl. SCR 120referred toPara 3[2010] 9 SCR 543referred toPara 7H[2011] 3 PLJR 547referred toPara 7

CIVIL APPELLATE JURISDICTION: Civil Appeal No.7879 of2019

From the Judgment and Order dated 12.07.2011 of the High Courtof 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, GauravAgrawal, Sanjeet K. Trivedi, Vipin Kumar Jai, Devashish Bharuka,Akhilesh Kumar Pandey, Abhinav Mukerji, Yashraj Bundela, PraveenVignesh, Rajiv Kumar, Sanjeev Gupta, Rameshwar Prasad Goyal, KrishnaM. 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 EkbalRoy, Saurabh Upadhayay, Ms. Akanksha Verma, S. K. Verma, NavinPrakash, A. K. Yadav, Jitendra Mahapatra, Ms. Rumi Chandra, AnujRajput, Kedar Nath Tripathy, Pahlad Singh Sharma, Rohini Prasad,Nishant Kumar, Nitish Shekhar, Ms. Pratishtha Vij, Mrs. Bihu Sharma, D

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ASamarth Khanna, Kusum Chaudhary, N. Rai, Shantanu Sagar, PrernaSingh, Chandan Kumar, S. K. Pabbi, Ms. Shikha Roy, Ramesh Tiwari,Gopal Singh, Shikhil Suri, Shiv Kumar Suri, Navin Prakash, Kedar NathTripathy, Simita Mukherjee, Hitesh Kumar Sharma, Ms. Meenakshi Das,K. V. Mohan, Chandan Kumar, Rituraj Chowdhary, Chandra Prakash,Advs. for the appearing parties.B

The Judgment of the Court was delivered by HEMANT GUPTA, J. 1. This judgment shall dispose of twosets 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 atCPatna[1] whereby, the appeals filed by the State were dismissed directedagainst 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 DivisionBench of the High Court on September 24, 2014 whereby the orderpassed by the learned single Bench on October 6, 2009 was set aside.Some other Appeals are also on board against the orders passed by theDHigh Court on other dates.

2. Since the issue in the appeals is common arising out of same orsimilar facts, therefore, such appeals have been taken up for hearingtogether.

E3. Brief facts leading to the present appeals are that large numberof candidates were appointed against Class III or Class IV posts in theHealth Department in Government of Bihar till 1990 or so. The servicesof such employees were terminated which led to number of writ petitionsbefore the High Court. The first round of cases came to end with theorder of three Judge Bench of this Court reported as Ashwani KumarF& Ors. v. State of Bihar & Ors.[2]. This Court held that recruitmentsmade by Dr. Mallick were arbitrary, capricious, null and void afterconsidering the Government order dated December 3, 1980 as well asGovernment resolution dated March 25, 1983. It was also held thatnone of the appointees have any accrued right in the absence ofGsanctioned posts. It was held that the whole exercise remained in therealm 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 CourtH2(1997) 2 SCC 1

that army of employees under the Scheme had got to be cleared lock,stock and barrel so that public confidence in Government administrationwould not get shattered and arbitrary actions would not get sanctified.

4. It is thereafter in another round, the Division Bench of the HighCourt in State of Bihar & Ors. v. Purendra Sulan Kit & Ors.[3] decidedapproximately 819 Letters Patent Appeals and the writ petitions. TheHigh Court noticed that the entry to Class III and Class IV posts in thehealth department during the same period were through back door methodand, in many cases, through forged and fabricated letters of appointmentor through transfer orders without actual appointments and, in somecases, appointments were made without availability of sanctioned postsmade by the authority not competent to appoint. The High Court directedthe Department of Health in the Government of Bihar to scrutinize thecases of affected employees afresh on the basis of relevant materialsand in view of the law declared by this Court in Secretary, State ofKarnataka & Ors. v. Umadevi (3) & Ors.[4]. The High Court held asunder:

“10. 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 v. Uma Devi (supra) asto which of such affected employees are fit for regularisation interms 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 undertaken 3 2006 SCC OnLine Pat 290

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Aby them and their final decision in the light of this judgment andorder.”

5. It is in pursuance to such direction; the State constituted aCommittee of five officers[5] to examine the facts of individual’s case.Two members of the State Committee did not participate in theBproceedings nor signed the Report but remaining three memberssubmitted its report on December 31, 2008. After considering the factsof each individual’s case, the employees were put in following threecategories:

(a) employment secured on forged documents; C(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 appointmentDletters. In terms of the Report of the State Committee, termination orderswere again passed in respect of the candidates falling in the categoriesi.e. employment secured on forged documents and illegal appointments,whereas, 91 candidates whose appointment was found to be irregularwere allowed to continue. Such Report of the State Committee as wellas the termination orders were challenged before the learned SingleEBench by filing separate writ petitions. The lead case being CWJC No.6575 of 2009. All such writ petitions were allowed on October 6, 2009whereby, the report submitted by three members on December 31, 2008was quashed with a direction to reinstate the employees.

7. The order dated October 6, 2009 was challenged by the StateFin some of the intra-court appeals before the High Court. Such appealswere dismissed on March 29, 2011, inter alia, on the ground that inquirywas conducted in violation of the principle of natural justice as onlythree members have signed the Report. It was thus held that suchtermination is contrary to the judgment of this Court in State of Karnataka& Ors. v. M.L. Kesari & Ors.[6]It was found that since the writ petitionersGhave worked for more than ten years, therefore, the services are entitledto 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 Committee6(2010) 9 SCC 247H72011 (3) PLJR 547

the appeals arising out of order dated March 29, 2011 in State of Biharv. Kirti Narayan Prasad[8]. In the meantime, many appeals filed by theState were dismissed by the High Court on many dates including June30, 2010, July 12, 2011, July 14, 2011, July 20, 2011, April 15, 2013, October30, 2013 and November 30, 2015 which are subject matter of challengein the present appeals.

8. The order passed by the learned Single Judge also gave rise toLPA No. 1623 of 2009 and other appeals. Such appeals were allowedby consent on February 11, 2010 whereby, one-man Committee underthe Chairmanship of Hon’ble Mr. Justice Uday Sinha, a retired Judge ofthe High Court was entrusted the task of looking into various facts ofthe nature of appointment with the view to adjudicate the legality of theirappointments and continuance in service. Subsequently, LPA No. 560of 2010 and some other appeals were allowed on March 23, 2010 in thelight of order passed in the aforesaid LPA but without any consent. Thesaid orders were challenged before this Court in Civil Appeal No.6484of 2011 and other matters. The appeals were allowed by this Court onAugust 8, 2011, inter alia, on the ground that without consent, the appealcould not be disposed of in terms of LPA No. 1623 of 2009 and otherconnected appeals. The appeals were directed to be decided afresh. Itis thereafter, the Division Bench passed an order on September 24, 2014setting aside the order passed by the learned Single Bench on October6, 2009.

9. The Division Bench held that in view of the appointments beingillegal and void ab initio, the services cannot be reguarlised and thatthe judgment of the Division Bench of the High Court in Binay KumarSingh is contrary to the Full Bench judgment in Ram Sevak Yadav &Anr. v. The State of Bihar & Ors[9], wherein the appellants were appointedon Class IV posts by the Civil Surgeon in the Health Department as inthe present set of appeals but their services were terminated in the year2001 for the reason that their appointments were illegal. The Full Benchof the High Court held as under:

“41. The public power to make appointment on public posts isconferred for public good. The power is given to the officerconcerned by the government in trust, that it shall be used and notabused. If the trust is belied, the protection conferred upon a 8 2018 SCC OnLine SC 261

9 2013 Lab IC 1607 (FB)

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government servant stands denuded. The answerability andaccountability is then individual of the officer. The government isduty bound to take appropriate civil/criminal action against theofficer. The illegality in the appointment is not a one way street. Ifthere was someone willing to pay a price for the job, there wasanother waiting to take advantage of the same by fixing a price. Itis not without reason that majority of such appointments relate toclass III and IV posts. The standard by which the governmentprofesses to act is the same standard by which its actions shall bejudged. Therefore whenever the government terminates anappointment being illegal, it is the constitutional duty of thegovernment to simultaneously take action against the officials whobelied the trust of the government. Those who made hay whilethe sun shined must see the darker cloudy days also…….

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44. The petitioners were appointed in temporary capacity by aprocess contrary to Article 14 of the Constitution withoutcompetitive selection as an individual favour doled out to them.There is no material to hold that they were appointed against vacantsanctioned post and possessed qualifications for the same. Theywere terminated before (Uma Devi) (supra) and have sought toretain their status by virtue of Court proceedings and are thereforenot entitled to the benefits of paragraph 53. The issue of anyprocedural irregularity for a finding of forged appointment istherefore irrelevant.”

10. The Division Bench in its order dated September 24, 2014,following the Full Bench judgment of that court, now subject matter ofchallenge by the employees in these appeals, held as under:

“………… The State Government, pursuant to the aforesaiddirection, in its wisdom, appears to have constituted a committeeof five members. Ultimately, only three members sat in the enquiry;held the enquiry and made its report. We do not see any reasonwhy the said report cannot be believed or should be held to beillegal or invalid. It is not in dispute that the State Committee didoffer opportunity of representation and hearing to the affectedemployees. The principles of natural justice having been compliedwith, this Court ought not to have any reason to disbelieve or interfere with the finding recorded by the State Committee. It isnote worthy that the writ petitioners have not challenged the findingrecorded by the State Committee or at least have not been able toestablish that the respective finding is erroneous on the facts ofthe case. We have recorded the facts of one case just to bringhome the nature of illegality committed by the Civil Surgeon-cum-Chief Medical Officer. As recorded hereinabove, in repeatedenquiry made by the State Government all such appointments werefound to be illegal, void ab-initio. Unless there is a strong evidenceof such finding being wrong, this Court in exercise of power ofjudicial review shall not interfere with such finding.

In the present set of writ petitions, none of the writ petitioners hasdislodged the finding of illegal appointment or has established thathis or her appointment was legal and valid in all respects. In ourview, the learned single Judge has erred in totally discarding thereport of the State Committee on the premise that only threemembers of the committee had conducted the enquiry and hadsubmitted the report.

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This brings us to the last question whether in view of their longservice, the writ petitioners are entitled to regularization in serviceas observed by the Hon’ble Supreme Court in Uma Devi (3)(supra). This was the precise question which was referred to theFull Bench in the matter of Ram Sevak Yadav & Anr. (supra).The Full Bench of this Court has categorically held that thejudgment in Uma Devi (supra), prohibits regularization of suchappointments, the period of service being irrelevant; and that illegalappointment void abinitio cannot be regularised under anycircumstances. In view of the aforesaid decision of the Full Benchof this Court, the law laid down by the Division Bench of thisCourt in the matter of The State of Bihar & Ors. Vs. Binay KumarSingh & Ors. [2011 (3) PLJR 547] is no longer a good law.

In the present case, the appointments of the writ petitioners havebeen repeatedly held to be non est or void ab initio. The questionof regularization of their service even by invoking paragraph 44of the judgment in the matter of Uma Devi (3) (supra) shall notarise.”

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A11. The appointments in the Health Department to Class III andClass IV posts firstly came up for consideration before this Court inAshwani Kumar. This Court examined the following points:

“1. Whether the appointments of Class III and Class IV employeeson the Tuberculosis Eradication Scheme as a part of 20-PointBProgramme were legal and valid.

2. Whether the confirmation of these employees was legallyjustified.

3. Whether principles of natural justice were violated whileterminating services of all these 6000 employees appointed by Dr Mallick.C

4. What relief, if any, can be granted to the appellants.”

12. In respect of first point for determination, the Court wasconsidering the fact that Dr. A.A. Mallick, Deputy Director, HealthDepartment of the Government of Bihar, was in charge of TuberculosisDCentre and as Assistant Director of Filaria, had appointed 6000 employeesagainst sanctioned posts of 2250. This Court found that all theserecruitments were arbitrary, capricious, null and void against violation ofall norms of administrative procedure contrary to separate Governmentorders dated December 3, 1980 for Class III and Class IV posts. ThisCourt considering the resolution dated March 25, 1983 relied upon byEthe employees to claim continuity of service, held as under:

“12. … We agree with the contention of Shri Singh, learned counselfor the respondent-State that all these recruitments made by DrMallick were arbitrary, capricious and were null and void as hedid violence to the established norms and procedures for recruitingsuch employees. Dr Mallick was not giving appointments to theseemployees in his private establishment. He was recruiting them ina Government Programme which was supported by plannedexpenditure. Such recruitment to public services could not havebeen effected in such a cavalier fashion in which it was done byDr Mallick……….. Unfortunately Dr Mallick treated this Schemeas his private property. The device adopted by him was in flagrantviolation of all norms of administrative procedure known to law.In this connection we may profitably refer to Government Orderdated 3-12-1980.… It is not in dispute that none of theseinstructions and the procedure laid down for recruiting Class IIIand Class IV employees were followed by Dr Mallick while F

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recruiting ad hoc/daily-wage employees at the initial stage in theTuberculosis Eradication Scheme supervised and monitored byhim…………………..

…. But the very Resolution indicates that recruitment had to befor regular appointments to be made by the Selection Committeeto Class III and Class IV posts under Malaria, Filaria and T.B.programme. Therefore, recruitment was to be done in a regularmanner against available posts. It never gave a blanket power toDr Mallick to create new posts which were not sanctioned and tomake recruitment thereon. Nor did it give any authority to throwthe recruitment procedure for recruiting such Class III and ClassIV employees to the winds and to make recruitment in an arbitrarymanner at his whims and fancies. Nowhere this Resolutionindicates that the earlier government orders laying down theprocedure regarding recruitment to Class III and Class IV postswere 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 thereis vacancy there is no question of filling it up. There cannot be anemployee without a vacancy or post available on which he canwork and can be paid as per the budgetary sanctions... It must,therefore, be held that the appointments of 6000 employees asmade by Dr Mallick in the Tuberculosis Eradication Scheme wereex facie illegal. As they were contrary to all recognised recruitmentprocedures and were highly arbitrary, they were not binding onthe 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 entryitself is unauthorised and that appointment is not against sanctionedvacancy, therefore, the question of regularising of services would neverarise for consideration. This Court held as under:

“13. …But if the initial entry itself is unauthorised and is notagainst any sanctioned vacancy, question of regularising theincumbent on such a non-existing vacancy would never survivefor consideration and even if such purported regularisation orconfirmation is given it would be an exercise in futility. It wouldamount to decorating a still-born baby. Under these circumstancesthere was no occasion to regularise them or to give them valid A

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confirmation….. As we have seen earlier when the initialappointments by Dr Mallick so far as these daily-wagers wereconcerned, were illegal there was no question of regularising suchemployees and no right accrued to them as they were not confirmedon available clear vacancies under the Scheme. It passes one’scomprehension as to how against 2500 sanctioned vacanciesconfirmation could have been given to 6000 employees. The wholeexercise remained in the realm of an unauthorised adventure.Nothing could come out of nothing. Ex nihilo nihil fit. Zeromultiplied by zero remains zero...”

14. While considering the argument to seek regularisation of theservices, this Court held as under:

“14. In this connection it is pertinent to note that question ofregularisation in any service including any government servicemay arise in two contingencies. Firstly, if on any available clearvacancies which are of a long duration appointments are made onad hoc basis or daily-wage basis by a competent authority andare continued from time to time and if it is found that the incumbentsconcerned have continued to be employed for a long period oftime with or without any artificial breaks, and their services areotherwise required by the institution which employs them, a timemay come in the service career of such employees who arecontinued on ad hoc basis for a given substantial length of time toregularise them so that the employees concerned can give theirbest by being assured security of tenure. But this would requireone precondition that the initial entry of such an employee mustbe made against an available sanctioned vacancy by followingthe rules and regulations governing such entry………….

…But even in such a case the initial entry must not be found to betotally illegal or in blatant disregard of all the established rules andregulations governing such recruitment. In any case back-doorentries for filling up such vacancies have got to be strictly avoided.However, there would never arise any occasion for regularisingthe appointment of an employee whose initial entry itself is taintedand is in total breach of the requisite procedure of recruitmentand especially when there is no vacancy on which such an initialentry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning andno question of regularising such an illegal entrant would eversurvive for consideration, however competent the recruiting agencymay be. The appellants fall in this latter class of cases. They hadno case for regularisation and whatever purported regularisationwas effected in their favour remained an exercise in futility. …For all these reasons, therefore, it is not possible to agree with thecontention of the learned counsel for the appellants that in anycase the confirmations given to these employees gave themsufficient cloak of protection against future termination fromservices. On the contrary all the cobwebs created by Dr Mallickby bringing in this army of 6000 employees under the Scheme hadgot to be cleared lock, stock and barrel so that public confidencein Government administration would not get shattered and arbitraryactions would not get sanctified.”

15. The third point for consideration was in respect of violationsof principle of natural justice. This Court found that as many as 3750candidates were appointed in totally unauthorised manner and weresquatting against non-existing vacancies. A situation had arisen whichrequired immediate action for clearing the stables and for eradicatingthe evil effects of these vitiated recruitments so that the TuberculosisEradication Scheme could be put on a sound footing. The High Courthad directed the State to appoint a Committee to thoroughly investigatethe entire matter. Such Committee had issued public notices. 987candidates appeared before the Committee. This Court held that thematerial supplied by the employees concerned was taken intoconsideration and then the Committee came to a firm decision to theeffect that all these appointments made by Dr Mallick were vitiatedfrom the inception and were required to be set aside and that is how theimpugned termination orders were passed against the appellants. Thus,it was held that the principles of natural justice were not violated if noopportunity was given to the employees concerned to have their say inthe matter before their appointments were recalled and terminated.

16. However, while answering point No. 4, the State was directedto start a fresh exercise for recruiting Class III and Class IV employeesagainst available 2250 vacancies or even more vacancies. The secondround of cases started with the report of the State Committee constitutedin terms of directions of the High Court in Purendra Sulan Kit.

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A17. When the present set of appeals came up for hearing beforethis Court on April 3, 2018, this Court found the following four categoriesof cases:

“(i) Appointments made on the basis of forged appointment letter.They are at S.Nos. 2 to 48.

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(ii) Appointments made on the basis of forged nursing registrationcertificate. They are at S. Nos. 49-50-51.

(iii) Appointments made by a person who was not competent tomake the appointment. They are at S.Nos. 52 to 92.

C(iv) There is a residual category at S.NO. 1 i.e. appointment madeby Dr. A.A. Mallick, Dy. Director, T.B. and S. Nos. 93 & 94 whoare now claiming appointment. Their cases will be dealt with sepa-rately.”

18. The first category of cases was decided by three Judge BenchDin Kirti Narayan Prasadon November 30, 2018 wherein, it was held asunder:

“17. In the instant cases the writ petitioners have filed the petitionsbefore the High Court with a specific prayer to regularize theirservice and to set aside the order of termination of their services.They have also challenged the report submitted by the StateECommittee. The real controversy is whether the writ petitionerswere legally and validly appointed. The finding of the StateCommittee is that many writ petitioners had secured appointmentby producing fake or forged appointment letter or had beeninducted in Government service surreptitiously by concerned CivilFSurgeon-cum-Chief Medical Officer by issuing a posting order.The writ petitioners are the beneficiaries of illegal orders madeby the Civil Surgeon-cum-Chief Medical Officer. They were givennotice to establish the genuineness of their appointment and toshow cause. None of them could establish the genuineness orlegality of their appointment before the State Committee. TheGState Committee on appreciation of the materials on record hasopined that their appointment was illegal and void ab initio. Wedo not find any ground to disagree with the finding of the State Committee. In the circumstances, the question of regularisationof their services by invoking para 53 of the judgment in Umadevi(supra) does not arise. Since the appointment of the petitioners isab initio void, they cannot be said to be the civil servants of theState. Therefore, holding disciplinary proceedings envisaged byArticle 311 of the Constitution or under any other disciplinary rulesshall not arise.”

19. The cases in the second category i.e. appointment on the basisof forged nursing registration stands on the same footing as categoryone though it is argued by the appellants in three appeals that nursingregistration certificate is not forged but the matriculation certificate onthe basis of which the candidates have undergone Auxiliary Nurse Mid-Wife[10] course was found to be forged. The State Committee has foundthat ANM certificate is a forged certificate. Even if, the certificate ofANM is not forged as argued before this Court but the MatriculationCertificate 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 undertakeANM course, which will vitiate the process of appointment. For thereasons recorded in Kirti Narayan Prasad, Civil Appeal Nos. 7906 of2019, 7919 of 2019 and 7920 of 2019 are dismissed.

20. Coming to third category of cases, Mr. Mukherjee, learnedcounsel for the State referred to the separate Government Circularsdated December 3, 1980 in respect of Class III and Class IV categoryposts. It is contended that appointments on such circulars have beenfound to be illegal by this Court in Ashwani Kumar, which view was infact, 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 onthis aspect. By and large what emerges is that regular recruitmentshould be insisted upon, only in a contingency can an ad hocappointment be made in a permanent vacancy, but the same shouldsoon be followed by a regular recruitment and that appointmentsto non-available posts should not be taken note of for regularisation.The cases directing regularisation have mainly proceeded on thebasis that having permitted the employee to work for some period, 10for short, ‘ANM

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he should be absorbed, without really laying down any law to thateffect, after discussing the constitutional scheme for publicemployment.

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53. One aspect needs to be clarified. There may be cases whereirregular appointments (not illegal appointments) as explained inS.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071] ,R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] andB.N. Nagarajan [(1979) 4 SCC 507 : 1980 SCC (L&S) 4 : (1979)3 SCR 937] and referred to in para 15 above, of duly qualifiedpersons in duly sanctioned vacant posts might have been madeand the employees have continued to work for ten years or morebut without the intervention of orders of the courts or of tribunals.The question of regularisation of the services of suchemployees may have to be considered on merits in the light ofthe principles settled by this Court in the cases above-referredto and in the light of this judgment…………….”

(Emphasis Supplied)

21. In Uma Devi, the argument that the employees have legitimateexpectations was negated when this Court held as under:

“46. ………….. The doctrine can be invoked if the decisions ofthe administrative authority affect the person by depriving him ofsome benefit or advantage which either (i) he had in the pastbeen permitted by the decision-maker to enjoy and which he canlegitimately expect to be permitted to continue to do until therehave been communicated to him some rational grounds forwithdrawing it on which he has been given an opportunity tocomment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first anopportunity of advancing reasons for contending that they shouldnot be withdrawn… There is no case that any assurance wasgiven by the Government or the department concerned whilemaking the appointment on daily wages that the status conferredon him will not be withdrawn until some rational reason comesinto existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of theCommercial Taxes Department sought to get the appointmentsmade permanent, there is no case that at the time of appointmentany promise was held out. No such promise could also have beenheld out in view of the circulars and directives issued by theGovernment after Dharwad decision [(1990) 2 SCC 396 : 1990SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though,there is a case that the State had made regularisations in the pastof similarly situated employees, the fact remains that suchregularisations were done only pursuant to judicial directions, eitherof the Administrative Tribunal or of the High Court and in somecases by this Court….

47. When a person enters a temporary employment or getsengagement as a contractual or casual worker and the engagementis not based on a proper selection as recognised by the relevantrules or procedure, he is aware of the consequences of theappointment being temporary, casual or contractual in nature. Sucha person cannot invoke the theory of legitimate expectation forbeing confirmed in the post when an appointment to the post couldbe made only by following a proper procedure for selection and incases concerned, in consultation with the Public ServiceCommission. Therefore, the theory of legitimate expectationcannot be successfully advanced by temporary, contractual orcasual employees….”

22. The State Committee has examined all the appointments andsegregated appointments based on forged documents and also irregularappointments. Once the detailed report has been submitted examiningthe merit of each candidate, and when the judgment of this Court inAshwani Kumar and Uma Devi conclusively answer the questionsagainst the employees, no further discussion on the arguments raisedwould survive. However, since the arguments have been addressed inrespect of the third category of cases i.e. appointments made by a personwho was not competent to make the appointments, we shall consider asto what will be the effect of such appointments.

23. Mr. Mukherjee, learned counsel for the State referred to variousGovernment orders issued from time to time and submitted that such A

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Acategory has to be examined in two groups; one where the appointmentswere made by the incompetent authority; and second, the appointmentsmade by the competent authority but without any sanctioned post andwithout following the procedure for appointment to public post.

24. It is admitted that there is no statutory rule in terms of provisoBto Article 309 of the Constitution for appointment to Class III and ClassIV categories in the State. The matter of appointment is regulated bythe Executive instructions. Mr. Mukherjee has referred to Bihar HealthManual. Chapter I of the Manual deals with Organisation and functionsof the Health Department of the State. It was pointed out that fromCMay 1, 1953, the Medical and the Public Health Departments wereamalgamated into one department called the Department of Health underthe Director of Health Services. It was pointed out that the Director ofHealth Services is the appointing authority in respect of all non-gazettedappointments in the department including the Subordinate MedicalService. To assist the Director, there is one Additional Director andDthree Deputy Directors along with other gazetted officers includingAssistant Directors of Health Services (M. and C.H.). The relevantextract of the Manual reads as under:

“2. – Administrative and Financial Powers of the Officers of theHealth Department at the Headquarters and in the SubordinateEOffices.

(a) Powers of the Director of Health Services, Bihar.

3. The Director of Health Services is the appointing authority inFrespect of all non-gazetted appointments in the departmentincluding the Subordinate Medical Service.

(No. 7759., dated the 9[th] June 1916)”

6. The following powers are also delegated to the Director ofGHealth Services being a Head of Department under respectiveCodes, rules and orders:- H

STATE OF BIHAR & ORS. v. DEVENDRA SHARMA[HEMANT GUPTA, J.]

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25. Clause 7 of the Manual contemplates powers of DeputyDirector of Health Services whereas clause 8 deals with powers ofDeputy Director of Health Services (Public Health). The powers ofAssistant Director of Health Services are contained in Clause 9 whichreads as under:

“9. The following powers are delegated to the Assistant Directorof Health Services (Administration), Bihar:- (a) To deal with and sign all correspondence with subordinateoffices, Accountant-General, Bihar, the departments ofGovernment and other offices for and on behalf of the Directorof Health Services under his supervision.

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A(b) To countersign all travelling allowance bills of the non-gazettedstaff employed under the Director of Health Services.

(c) To pass and countersign all indents for forms and stationeryreceived in the office of the Director of Health Services from theMuffasil offices subject to the condition that the reduction orBincrease by more than 5 per cent should require the sanction ofthe Director of Health Services.

(d) To sanction all local purchase of contingent articles forheadquarters office or the Muffasil offices not exceeding Rs.20on any one item.

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(Govt. order no. 262/HD, dated the 13[th] July, 1953.)”

26. The Civil Surgeons in Districts as also State Leprosy Officerand Director, T B Demonstration Centre are subordinate to the Directorof Health Services. The powers of Assistant Director of Public Healthare as under:D

“13. Powers to the Assistant Directors of Public Health- (a) •xxx (b) xxx

(c) To recruit non-gazetted epidemic staff like Health AssistantsEand Vaccinators against sanctioned posts allowed to their respectivedivisions. The appointment of Epidemic doctors will ordinarily bemade by the Director of Health Services but in cases of emergencythe Assistant Directors of Public Health will have authority toappoint them against sanctioned posts subject to the approval ofFthe Directorate being obtained later on within three months.

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(Govt. order no. 27680-H date dated the 1[st] November, 1954).”

27. A circular was issued by the State on September 5, 1979 withregard to retrenchment of Government/Semi-Government employeesappointed on category III and IV temporary posts on ad-hoc basis.GThereafter, separate circulars were issued providing for procedure forappointment on category III and IV posts on December 3, 1980. Therelevant clause for the purposes of determining the person competent tomake appointment in respect of Category III posts reads as under:

“(b) The competent authority of Secretariat and attached offices,District Collector and equivalent Officer Incharge of divisionaloffices of other departments will collect the information fromattached offices at the start of the year for the posts actually tobe filled during the year and the information of vacancies. Suitablecandidates will be selected from these applicants according to thevacancies and suitable persons will be allotted to various attachedoffices for appointment, as per requirement, from the commonmerit list. All the appointments will be made by the competentauthority for their respective offices.

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(e) (i) One Selection Committee will be made for preparation ofmerit list in the Secretariat and attached offices and the Head ofattached establishment will be the Chairman of this Committeeand any senior officer will be the Member of Committee, who isnominated by the Head of Establishment. Officer of ScheduledCaste/Scheduled Tribe available in the department will be thesecond member. In case no such officer is available, if the officerof that category is available in another department, then he will beincluded in the Committee and if even this is also not possible,then Joint/Dy. Secretary of the Personnel Department, whoperform 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 ofthe attached Establishment will be the Chairman of selectioncommittee constituted and any other senior officer of thatEstablishment, who is nominated by their District level Head, willbe its member. Second Member will be the District WelfareOfficer so that at the time of preparation of merit list of governmentorders regarding maintenance no violation is committed.

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(3) It has come into the knowledge of government thatappointments on category 3 posts are not being made accordingto the procedure prescribed in the above-said resolution. The actof working against the prescribed procedure clearly means the A

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1014SUPREME COURT REPORTS

Aviolation of government orders, which is a matter of regret.Therefore, it is expected that the appointments on category 3 postsare made according to the procedure prescribed in the above-mentioned Resolution. It will be the responsibility of eachappointing authority to ensure that the procedure with regard toappointment on category 3 posts is followed strictly. In cast it isBfound that prescribed procedure has not been followed by theappointing authority with regard to appointment on category 3posts, then Government will have to take necessary action againsthim. Inquiry will be conducted immediately on receiving thecomplaint that the officer has not followed the prescribed procedureCand if the charge is found proved, the officer will be placed undersuspension immediately and departmental action will be taken toremove him from services. Such incorrect appointments will becancelled immediately.”

28. Similar is the circular in respect of appointment to CategoryDIV post. On January 20, 1992, the State issued a circular regardingtransfer and posting of Class III and Class IV employees of HealthDepartment and it was decided that the employees shall be decentralizedat the District level. It was communicated that transfer and posting asfar as possible shall remain within the jurisdiction of appointing officer.Clause 3 and 6 of the said circular reads as under:E“3. Appointment officers for different category of employees ofHealth Department are briefly mentioned as under:

(a) Civil Surgeon – For district class III and IV employees (belowsuperior category) and A.N.M.

F(b) Superintendent, Medical College Hospital – for Class III andIV 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 DivisionGClerk, A Grade Nurse, L.H. xxx Midwife, Matron, Public HealthNurse, Sanitary Inspector, Laboratory Assistant, X-ray technician,Physiotherapist, Occupational Therapist, Ophthalmic Assistant,Broadcast Trainer, Health Trainer, Dy. District Mass MediaOfficer, Stenographer, Cholera Worker, Special Cholera Worker,HMovie Player etc.”

6. On the above basis, all the earlier orders are superseded bythe following order:

(a) Cadre of employees appointed by civil surgeon will be of districtlevel. This will include staff of Regional Dy. Director Office.

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(h) Civil Surgeon will undertake transfer/posting of those ClassIII 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 GovernmentOrders, it is argued that the appointing authority of Class III and ClassIV posts is Director, Health Services. However, there was somedelegation in respect of certain other administrative matters but therewas no delegation in respect of appointment against Class III and ClassIV category posts. The powers conferred on Assistant Director in termsof clause 13(c) of Chapter I of Bihar Health Manual empowers AssistantDirector (Public Health) to appoint non-gazetted epidemic staff like HealthAssistants and Vaccinators against sanctioned posts but only in case ofemergency. A finding has been recorded in Ashwani Kumar that 2250posts were sanctioned whereas 6000 appointments were made. TheTuberculosis eradication under the 20-Point Programme was not anemergency activity which may empower the Assistant Director to makelarge number of appointments but again such emergent powers could beexercised only in respect of sanctioned posts.

30. The exception in respect of appointing authority came withthe circular dated December 3, 1980 which contemplated that suitablecandidates be selected as per requirement from common merit list bythe competent authorities of Secretariat and attached offices; DistrictCollector and equivalent Officer In charge of the Divisional Offices.Dr. Mallick, Deputy Director in the subordinate offices of the Directorateof Health Services was not competent to make appointments againstCategory III or Category IV posts in view of the provisions of the Manualas also in terms of the circular dated December 3, 1980 recorded by thisCourt in Ashwani Kumar as well.

31. Though, certain appointments have been made by CivilSurgeon which Mr. Mukherjee does not dispute as he was the competentauthority but it is argued that none of the requirements to fill up the A

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Apublic post was adhered to. Appointments were made to the publicposts without following any procedure and without there being anysanctioned post.

32. An argument was raised on behalf of learned counsel for theemployees that some of the appointments have been made by RegionalBDeputy Director as four posts of Assistant Director were converted intothat of Regional Deputy Director. We do not find any merit in the saidargument. The post of Assistant Director was provided in the Directorateof Health Services with no delegation of appointment except in the caseof emergency against sanctioned posts. Such Regional Deputy Directorhas not been conferred power of appointment against Class III and ClassCIV posts. Therefore, the Assistant Director was incompetent to makeappointments against the sanctioned posts except in emergent casesand so is Regional Deputy Director.

33. In Ashwani Kumar, this Court has dealt with the appointmentsmade against Class III and IV category posts in the Health DepartmentDitself. The reasoning recorded therein is that the appointments havebeen proved to be made not against the sanctioned posts and in a manner,which is wholly arbitrary, capricious and, therefore, employees will notget any right to seek regularisation of their services.

34. In Civil Appeal arising out of SLP (Civil) No. 20033 of 2012,Ethe respondent was appointed by Dr. A.A. Mallick. Such appointmentshave been found to be illegal by this Court in Ashwani Kumar. We findthat there is no reason to re-examine the appointments made by Dr.A.A. Mallick. Such appointments have been adversely commented uponin Ashwani Kumar case. Therefore, no right will accrue in favour ofFthe respondent. Consequently, the appeal arises out of SLP (Civil) No.20033 of 2012 is allowed and the order passed by the High Court is setaside.

35. Lastly, it is argued that employees have been working formany years, some for more than 25 years, therefore, humanitarian viewGshould be taken to set aside the order of termination and regularise theirservices so as to make them entitled to pension and other retirementbenefits.

36. We do not find any merit in the said argument. A Full Benchof the High Court in Rita Mishra & Ors. v. Director, PrimaryEducation, Bihar & Ors.[11 ]while dealing with appointment in theeducation department claiming salary despite the fact that letter ofappointment was forged, fraudulent or illegal, declined such claim. Itwas held that the right to salary stricto sensu springs from a legal rightto validly hold the post for which salary is claimed. It is a rightconsequential to a valid appointment to such post. Therefore, where thevery root is non-existent, there cannot subsist a branch thereof in theshape of a claim to salary. The rights to salary, pension and other servicebenefits are entirely statutory in nature in public service. Therefore, theserights, including the right to salary, spring from a valid and legalappointment to the post. Once it is found that the very appointment isillegal and is non est in the eye of law, no statutory entitlement for salaryor consequential rights of pension and other monetary benefits can arise.

37. Such judgment of the Full Bench was approved by three JudgeBench 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 PatnaHigh 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 publicservant was entitled to payment of salary to him for the workdone 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 innature in public service. Therefore, these rights, including theright to salary, spring from a valid and legal appointment to thepost. Once it is found that the very appointment is illegal and isnon est in the eye of the law, no statutory entitlement for salaryor consequential rights of pension and other monetary benefitscan arise. In particular, if the very appointment is rested onforgery, no statutory right can flow from it.”

11 AIR 1988 Patna 2612(2004) 2 SCC 105

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A18. We agree with the view taken by the Patna High Court in theaforesaid cases.”

38. The appointments made have been examined by five-memberCommittee. 91 candidates have been found to be a case of irregularappointment. Such candidates are continuing in service. None of theBcandidates in the present set of appeals could point out that they wereappointed in a manner meant for filling up of vacant post of publicappointment i.e. by advertisement and by giving opportunity to all eligiblecandidates to apply.

39. This Court in State of Jharkhand & Ors. v. ManshuCKumbhkar[13], while allowing of the appeal of the State foundthat therespondent was not sponsored by the employment exchange. There wasno advertisement and there was not even any properly constitutedcommittee to make the selection.

40. This Court in State of Bihar v. Upendra Narayan Singh &DOrs.[14 ]allowed the appeal of the State and thatSection 4 of EmploymentExchanges (Compulsory Notification of Vacancies) Act, 1959 casts aduty on the employer in every establishment in public sector in the Stateor a part thereof to notify every vacancy to the employment exchangebefore filling up the same.

E41. This Court in Union of India & Anr. v. Raghuwar Pal Singh[15]was examining a case, where the appointment letter came to be issuedwithout approval of the competent authority, then whether suchappointment letter issued to the respondent, would be a case of nullity ora mere irregularity? If it is a case of nullity, affording opportunity to theincumbent would be a mere formality and non-grant of opportunity mayFnot vitiate the final decision of termination of his services. This Courtheld that in absence of prior approval of the competent authority, theDirector Incharge could not have hastened issuance of the appointmentletter. The act of commission and omission of the Director Inchargewould, therefore, suffer from the vice of lack of authority and nullity inlaw.G

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 24914(2009) 5 SCC 65H15(2018) 15 SCC 46316(2017) 4 SCC 1

Course on the basis of illegal and unfair admission process. The Courtheld as under:

“92. …Having given our thoughtful consideration to the abovesubmission, we are of the considered view that conferring rightsor benefits on the appellants, who had consciously participated ina well thought out, and meticulously orchestrated plan, tocircumvent well laid down norms, for gaining admission to theMBBS course, would amount to espousing the cause of “theunfair”. It would seem like allowing a thief to retain the stolenproperty. It would seem as if the Court was not supportive of thecause of those who had adopted and followed rightful means.Such a course would cause people to question the credibility ofthe justice-delivery system itself. The exercise of jurisdiction inthe manner suggested on behalf of the appellants would surelydepict the Court’s support in favour of the sacrilegious. It wouldalso compromise the integrity of the academic community. Weare of the view that in the name of doing complete justice it is notpossible for this Court to support the vitiated actions of theappellants through which they gained admission to the MBBScourse.

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94. …Even in situations where a juvenile indulges in crime, hehas to face trial, and is subjected to the postulated statutoryconsequences. Law, has consequences. And the consequencesof law brook no exception. The appellants in this case, irrespectiveof 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 timethat admissions obtained by deceitful means would be cancelled.This Court has consistently annulled academic gains arising outof wrongful admissions. Acceptance of the prayer made by theappellants on the parameter suggested by them would result inoverlooking the large number of judgments on the point. Adoptionof a different course, for the appellants, would trivialise thedeclared legal position. Reference in this behalf may be made tothe judgments relied upon by the learned counsel representingVyapam.

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[2019] 15 S.C.R.

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108. …In the facts and circumstances of the case in hand, itwould not be proper to legitimise the admission of the appellantsto the MBBS course in exercise of the jurisdiction vested in thisBCourt under Article 142 of the Constitution. We, therefore, herebydecline the above prayer made on behalf of the appellants.”

43. In another three Judge Bench judgment in Chairman andManaging Director, Food Corporation of India & Ors. v. JagdishBalaram Bahira & Ors.[17], the Court was examining the consequencesCof false caste certificate produced to seek appointment. The Court heldas under:

“69. For these reasons, we hold and declare that:

D69.3 The decisions of this Court in R. Vishwanatha Pillai [R.Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 : 2004SCC (L&S) 350] and in Dattatray [Union of India v. Dattatray,(2008) 4 SCC 612 : (2008) 2 SCC (L&S) 6] which were renderedby Benches of three Judges laid down the principle of law thatwhere a benefit is secured by an individual-such as an appointmentEto a post or admission to an educational institution—on the basisthat the candidate belongs to a reserved category for which thebenefit is reserved, the invalidation of the caste or tribe claimupon verification would result in the appointment or, as the casemay 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 claimwhich has been found to be false and is invalidated is a necessaryconsequence which flows from the invalidation of the caste claimand no issue of retrospectivity would arise;”

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44. In view of the aforesaid judgments, it cannot be said that theappointment of the employees in the present set of appeals were irregularappointments. Such appointments are illegal appointment in terms ofthe ratio of Supreme Court judgment in Uma Devi. As such appointments H17(2017) 8 SCC 670

STATE OF BIHAR & ORS. v. DEVENDRA SHARMA[HEMANT GUPTA, J.]

were made without any sanctioned post, without any advertisement givingopportunity to all eligible candidates to apply and seek public employmentand without any method of recruitment. Such appointments were backdoorentries, an act of nepotism and favoritism and thus from any judicialstandards cannot be said to be irregular appointments but are illegalappointments in wholly arbitrary process.

45. In light of the above discussion, we find that the order datedJuly 12, 2011 or other similar orders passed by the High Court cannot besustained in law and, thus, are set aside. The appeals filed by the Stateare allowed.

46. We do not find any error in the order of the High Court datedSeptember 24, 2014, and, therefore, the appeals filed by the candidatesagainst such order are dismissed. The pending applications, if any, shallstand disposed of.

Nidhi Jain

Appeals disposed of.

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