State of Bihar v. Devendra Sharma

10) The Division Bench in its order dated September 24, 2014, following the Full Bench judgment of that court, now subject matter of challenge by the employees in these appeals, held as under: “………… The State Government, pursuant to the aforesaid direction, in its wisdom, appears to have constituted a committee of five members. Ultimately, only three members sat in the enquiry; held the enquiry and made its report. We do not see any reason why the said report cannot be believed or should be held to be illegal or invalid. It is not in dispute that the State Committee did offer opportunity of representation and hearing to the affected employees. The principles of natural justice having been complied with, this Court ought not to have any reason to disbelieve or interfere with the finding recorded by the State Committee. It is note worthy that the writ petitioners have not challenged the finding recorded by the State Committee or at least have not been able to establish that the respective finding is erroneous on the facts of the case. We have recorded the facts of one case just to bring home the nature of illegality committed by the Civil Surgeon-cum- Chief Medical Officer. As recorded hereinabove, in repeated enquiry made by the State Government all such appointments were found to be illegal, void ab-initio. Unless there is a strong evidence of such finding being wrong, this Court in exercise of power of judicial review shall not interfere with such finding. In the present set of writ petitions, none of the writ petitioners has dislodged the finding of illegal appointment or has established that his or her appointment was legal and valid in all respects. In our view, the learned single Judge has erred in totally discarding the report of the State Committee on the premise that only three members of the committee had conducted the enquiry and had submitted the report. xx xx xx This brings us to the last question whether in view of their long service, the writ petitioners are entitled to regularization in service as observed by the Hon’ble Supreme Court in Uma Devi (3) (supra). This was the precise question which was referred to the Full Bench in the matter of Ram Sevak Yadav & Anr. (supra). The Full Bench of this Court has categorically held that the judgment in Uma Devi (supra), prohibits regularization of such appointments, the period of service being irrelevant; and that illegal appointment void abinitio cannot be regularised under any circumstances. In view of the aforesaid decision of the Full Bench of this Court, the law laid down by the Division Bench of this Court in the matter of The State of Bihar & Ors. Vs. Binay Kumar Singh & Ors. [2011 (3) PLJR 547] is no longer a good law. In the present case, the appointments of the writ petitioners have been repeatedly held to be non est or void ab initio. The question of regularization of their service even by invoking paragraph 44 of the judgment in the matter of Uma Devi (3) (supra) shall not arise.”

11) The appointments in the Health Department to Class III and Class IV posts firstly came up for consideration before this Court in Ashwani Kumar. This Court examined the following points:

12) In respect of first point for determination, the Court was considering the fact that Dr. A.A. Mallick, Deputy Director, Health Department of the Government of Bihar, was in charge of Tuberculosis Centre and as Assistant Director of Filaria, had appointed 6000 employees against sanctioned posts of 2250. This Court found that all these recruitments were arbitrary, capricious, null and void against violation of all norms of administrative procedure contrary to separate Government orders dated December 3, 1980 for Class III and Class IV posts. This Court considering the resolution dated March 25, 1983 relied upon by the employees to claim continuity of service, held as under:

13) In respect of second point, it was held that if the initial entry itself is unauthorised and that appointment is not against sanctioned vacancy, therefore, the question of regularising of services would never arise for consideration. This Court held as under:

14) While considering the argument to seek regularisation of the services, this Court held as under: “14. In this connection it is pertinent to note that question of regularisation in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry…………. … But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisation and whatever purported regularisation was effected in their favour remained an exercise in futility. … For all these reasons, therefore, it is not possible to agree with the contention of the learned counsel for the appellants that in any case the confirmations given to these employees gave them sufficient cloak of protection against future termination from services. On the contrary all the cobwebs created by Dr Mallick by bringing in this army of 6000 employees under the Scheme had got to be cleared lock, stock and barrel so that public confidence in Government administration would not get shattered and arbitrary actions would not get sanctified.”

15) The third point for consideration was in respect of violations of principle of natural justice. This Court found that as many as 3750 candidates were appointed in totally unauthorised manner and were squatting against non-existing vacancies. A situation had arisen which required immediate action for clearing the stables and for eradicating the evil effects of these vitiated recruitments so that the Tuberculosis Eradication Scheme could be put on a sound footing. The High Court had directed the State to appoint a Committee to thoroughly investigate the entire matter. Such Committee had issued public notices. 987 candidates appeared before the Committee. This Court held that the material supplied by the employees concerned was taken into consideration and then the Committee came to a firm decision to the effect that all these appointments made by Dr Mallick were vitiated from the inception and were required to be set aside and that is how the impugned termination orders were passed against the appellants. Thus, it was held that the principles of natural justice were not violated if no opportunity was given to the employees concerned to have their say in the matter before their appointments were recalled and terminated.

16) However, while answering point No. 4, the State was directed to start a fresh exercise for recruiting Class III and Class IV employees against available 2250 vacancies or even more vacancies. The second round of cases started with the report of the State Committee constituted in terms of directions of the High Court in Purendra Sulan Kit.

17) When the present set of appeals came up for hearing before this Court on April 3, 2018, this Court found the following four categories of cases: “(i) Appointments made on the basis of forged appointment letter. They are at S.Nos. 2 to 48.

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

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

(iv) There is a residual category at S.NO. 1 i.e.

appointment made by Dr. A.A. Mallick, Dy. Director, T.B. and S. Nos. 93 & 94 who are now claiming appointment. Their cases will be dealt with separately.”

18) The first category of cases was decided by three Judge Bench in Kirti Narayan Prasad on November 30, 2018 wherein, it was held as under:

19) The cases in the second category i.e. appointment on the basis of forged nursing registration stands on the same footing as category one though it is argued by the appellants in three appeals that nursing registration certificate is not forged but the matriculation certificate on the basis of which the candidates have undergone Auxiliary Nurse Mid-Wife10 course was found to be forged. The State Committee has found that ANM certificate is a forged certificate. Even if, the certificate of ANM is not forged as argued before this Court but the Matriculation Certificate is said to be forged, the fact is that the educational qualification, a pre-condition for undergoing nursing course, was found to be forged. Therefore, the forgery is in the basic eligibility condition to undertake ANM course, which will vitiate the process of appointment. For the reasons recorded in Kirti Narayan Prasad, Civil Appeal Nos. 7906 of 2019, 7919 of 2019 and 7920 of 2019 are dismissed.

20) Coming to third category of cases, Mr. Mukherjee, learned counsel for the State referred to the separate Government Circulars dated December 3, 1980 in respect of Class III and Class IV category posts. It is contended that appointments on such circulars have been found to be illegal by this Court in Ashwani Kumar, which view was in fact, approved later by Constitution Bench judgment in Uma Devi, wherein this Court held as under:

21) In Uma Devi, the argument that the employees have legitimate expectations was negated when this Court held as under: “46. ………….. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decisionmaker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn… There is no case that any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it. The very engagement was against the constitutional scheme. Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out. No such promise could also have been held out in view of the circulars and directives issued by the Government after Dharwad decision [(1990) 2 SCC 396: 1990 SCC (L&S) 274: (1990) 12 ATC 902: (1990) 1 SCR 544]. Though, there is a case that the State had made regularisations in the past of similarly situated employees, the fact remains that such regularisations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some cases by this Court….

47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees….”

22) The State Committee has examined all the appointments and segregated appointments based on forged documents and also irregular appointments. Once the detailed report has been submitted examining the merit of each candidate, and when the judgment of this Court in Ashwani Kumar and Uma Devi conclusively answer the questions against the employees, no further discussion on the arguments raised would survive. However, since the arguments have been addressed in respect of the third category of cases i.e. appointments made by a person who was not competent to make the appointments, we shall consider as to what will be the effect of such appointments.

23) Mr. Mukherjee, learned counsel for the State referred to various Government orders issued from time to time and submitted that such category has to be examined in two groups; one where the appointments were made by the incompetent authority; and second, the appointments made by the competent authority but without any sanctioned post and without following the procedure for appointment to public post.

24) It is admitted that there is no statutory rule in terms of proviso to Article 309 of the Constitution for appointment to Class III and Class IV categories in the State. The matter of appointment is regulated by the Executive instructions. Mr. Mukherjee has referred to Bihar Health Manual. Chapter I of the Manual deals with Organisation and functions of the Health Department of the State. It was pointed out that from May 1, 1953, the Medical and the Public Health Departments were amalgamated into one department called the Department of Health under the Director of Health Services. It was pointed out that the Director of Health Services is the appointing authority in respect of all non-gazetted appointments in the department including the Subordinate Medical Service. To assist the Director, there is one Additional Director and three Deputy Directors along with other gazetted officers including Assistant Directors of Health Services (M. and C.H.). The relevant extract of the Manual reads as under:

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

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

25) Clause 7 of the Manual contemplates powers of Deputy Director of Health Services whereas clause 8 deals with powers of Deputy Director of Health Services (Public Health). The powers of Assistant Director of Health Services are contained in Clause 9 which reads as under:

27) A circular was issued by the State on September 5, 1979 with regard to retrenchment of Government/Semi-Government employees appointed on category III and IV temporary posts on ad-hoc basis. Thereafter, separate circulars were issued providing for procedure for appointment on category III and IV posts on December 3, 1980. The relevant clause for the purposes of determining the person competent to make appointment in respect of Category III posts reads as under: “(b) The competent authority of Secretariat and attached offices, District Collector and equivalent Officer Incharge of divisional offices of other departments will collect the information from attached offices at the start of the year for the posts actually to be filled during the year and the information of vacancies. Suitable candidates will be selected from these applicants according to the vacancies and suitable persons will be allotted to various attached offices for appointment, as per requirement, from the common merit list. All the appointments will be made by the competent authority for their respective offices. xx xx xx (e) (i) One Selection Committee will be made for preparation of merit list in the Secretariat and attached offices and the Head of attached establishment will be the Chairman of this Committee and any senior officer will be the Member of Committee, who is nominated by the Head of Establishment. Officer of Scheduled Caste/Scheduled Tribe available in the department will be the second member. In case no such officer is available, if the officer of that category is available in another department, then he will be included in the Committee and if even this is also not possible, then Joint/Dy. Secretary of the Personnel Department, who perform the works related to Scheduled Caste/Scheduled Tribe, will be appointed as a Member.

(ii) For preparation of merit list at District level, District Head of the attached Establishment will be the Chairman of selection committee constituted and any other senior officer of that Establishment, who is nominated by their District level Head, will be its member. Second Member will be the District Welfare Officer so that at the time of preparation of merit list of government orders regarding maintenance no violation is committed. xx xx xx (3) It has come into the knowledge of government that appointments on category 3 posts are not being made according to the procedure prescribed in the above-said resolution. The act of working against the prescribed procedure clearly means the violation of government orders, which is a matter of regret. Therefore, it is expected that the appointments on category 3 posts are made according to the procedure prescribed in the above-mentioned Resolution. It will be the responsibility of each appointing authority to ensure that the procedure with regard to appointment on category 3 posts is followed strictly. In cast it is found that prescribed procedure has not been followed by the appointing authority with regard to appointment on category 3 posts, then Government will have to take necessary action against him. Inquiry will be conducted immediately on receiving the complaint that the officer has not followed the prescribed procedure and if the charge is found proved, the officer will be placed under suspension immediately and departmental action will be taken to remove him from services. Such incorrect appointments will be cancelled immediately.”

28) Similar is the circular in respect of appointment to Category IV post. On January 20, 1992, the State issued a circular regarding transfer and posting of Class III and Class IV employees of Health Department and it was decided that the employees shall be decentralized at the District level. It was communicated that transfer and posting as far as possible shall remain within the jurisdiction of appointing officer. Clause 3 and 6 of the said circular reads as under:

6. On the above basis, all the earlier orders are superseded by the following order: (a) Cadre of employees appointed by civil surgeon will be of district level. This will include staff of Regional Dy. Director Office. xx xx xx (h) Civil Surgeon will undertake transfer/posting of those Class III and IV Employees for whom he is original appointment officer. Such transfer and postings will be done within the district.”

29) On the basis of the abovesaid circulars and the Government Orders, it is argued that the appointing authority of Class III and Class IV posts is Director, Health Services. However, there was some delegation in respect of certain other administrative matters but there was no delegation in respect of appointment against Class III and Class IV category posts. The powers conferred on Assistant Director in terms of clause 13(c) of Chapter I of Bihar Health Manual empowers Assistant Director (Public Health) to appoint non-gazetted epidemic staff like Health Assistants and Vaccinators against sanctioned posts but only in case of emergency. A finding has been recorded in Ashwani Kumar that 2250 posts were sanctioned whereas 6000 appointments were made. The Tuberculosis eradication under the 20-Point Programme was not an emergency activity which may empower the Assistant Director to make large number of appointments but again such emergent powers could be exercised only in respect of sanctioned posts.

30) The exception in respect of appointing authority came with the circular dated December 3, 1980 which contemplated that suitable candidates be selected as per requirement from common merit list by the competent authorities of Secretariat and attached offices; District Collector and equivalent Officer In charge of the Divisional Offices. Dr. Mallick, Deputy Director in the subordinate offices of the Directorate of Health Services was not competent to make appointments against Category III or Category IV posts in view of the provisions of the Manual as also in terms of the circular dated December 3, 1980 recorded by this Court in Ashwani Kumar as well.

31) Though, certain appointments have been made by Civil Surgeon which Mr. Mukherjee does not dispute as he was the competent authority but it is argued that none of the requirements to fill up the public post was adhered to. Appointments were made to the public posts without following any procedure and without there being any sanctioned post.

32) An argument was raised on behalf of learned counsel for the employees that some of the appointments have been made by Regional Deputy Director as four posts of Assistant Director were converted into that of Regional Deputy Director. We do not find any merit in the said argument. The post of Assistant Director was provided in the Directorate of Health Services with no delegation of appointment except in the case of emergency against sanctioned posts. Such Regional Deputy Director has not been conferred power of appointment against Class III and Class IV posts. Therefore, the Assistant Director was incompetent to make appointments against the sanctioned posts except in emergent cases and so is Regional Deputy Director.

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

34) In Civil Appeal arising out of SLP (Civil) No. 2003[3] of 2012, the respondent was appointed by Dr. A.A. Mallick. Such appointments have been found to be illegal by this Court in Ashwani Kumar. We find that there is no reason to reexamine the appointments made by Dr. A.A. Mallick. Such appointments have been adversely commented upon in Ashwani Kumar case. Therefore, no right will accrue in favour of the respondent. Consequently, the appeal arises out of SLP (Civil) No. 2003[3] of 2012 is allowed and the order passed by the High Court is set aside.

35) Lastly, it is argued that employees have been working for many years, some for more than 25 years, therefore, humanitarian view should be taken to set aside the order of termination and regularise their services so as to make them entitled to pension and other retirement benefits.

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

37) Such judgment of the Full Bench was approved by three Judge Bench of this Court in a Judgment reported R. Vishwanatha Pillai v. State of Kerala & Ors.12. This Court held as under:

18. We agree with the view taken by the Patna High Court in the aforesaid cases.” 38) The appointments made have been examined by fivemember Committee. 91 candidates have been found to be a case of irregular appointment. Such candidates are continuing in service. None of the candidates in the present set of appeals could point out that they were appointed in a manner meant for filling up of vacant post of public appointment i.e. by advertisement and by giving opportunity to all eligible candidates to apply.

39) This Court in State of Jharkhand & Ors. v. Manshu Kumbhkar13, while allowing of the appeal of the State found that the respondent was not sponsored by the employment exchange. There was no advertisement and there was not even any properly constituted committee to make the selection.

40) This Court in State of Bihar v. Upendra Narayan Singh & Ors.14 allowed the appeal of the State and that Section 4 of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same.

41) This Court in Union of India & Anr. v. Raghuwar Pal Singh15 was examining a case, where the appointment letter came to be issued without approval of the competent authority, then whether such appointment letter issued to the respondent, would be a case of nullity or a mere irregularity? If it is a case of nullity, affording opportunity to the incumbent would be a mere formality and non-grant of opportunity may not vitiate the final decision of termination of his services. This Court held that in absence of prior approval of the competent authority, the Director Incharge could not have hastened issuance of the appointment letter. The act of commission and omission of the Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law.

42) In Nidhi Kaim & Anr. v. State of Madhya Pradesh & Ors.16, a three Judge Bench was dealing with admission of students to MBBS Course on the basis of illegal and unfair admission process. The Court held as under:

43) In another three Judge Bench judgment in Chairman and Managing Director, Food Corporation of India & Ors. v. Jagdish Balaram Bahira & Ors.17, the Court was examining the consequences of false caste certificate produced to seek appointment. The Court held as under: “69. For these reasons, we hold and declare that: xx xx xx 69.[3] The decisions of this Court in R. Vishwanatha Pillai [R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105: 2004 SCC (L&S) 350] and in Dattatray [Union of India v. Dattatray, (2008) 4 SCC 612: (2008) 2 SCC (L&S) 6] which were rendered by Benches of three Judges laid down the principle of law that where a benefit is secured by an individual-such as an appointment to a post or admission to an educational institution—on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would result in the appointment or, as the case may be, the admission being rendered void or non est. xx xx xx 69.[7] Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence which flows from the invalidation of the caste claim and no issue of retrospectivity would arise;”

44) In view of the aforesaid judgments, it cannot be said that the appointment of the employees in the present set of appeals were irregular appointments. Such appointments are illegal appointment in terms of the ratio of Supreme Court judgment in Uma Devi. As such appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. Such appointments were backdoor entries, an act of nepotism and favoritism and thus from any judicial standards cannot be said to be irregular appointments but are illegal appointments in wholly arbitrary process.

45) In light of the above discussion, we find that the order dated July 12, 2011 or other similar orders passed by the High Court cannot be sustained in law and, thus, are set aside. The appeals filed by the State are allowed.

46) We do not find any error in the order of the High Court dated September 24, 2014, and, therefore, the appeals filed by the candidates against such order are dismissed. The pending applications, if any, shall stand disposed of .............................................. J. (L. NAGESWARA RAO) ............................................. J. (HEMANT GUPTA) NEW DELHI; OCTOBER 17, 2019.