TMI Blog2004 (9) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Rules') were framed under proviso to Article 309 of the Constitution. These Rules provided that appointment to the posts of Junior Teachers shall be made through a Selection Board by recruitment from amongst the Assistant Surgeons with at least one year's experience as such, in consultation with the Orissa Public Service Commission (hereinafter referred to as 'OPSC'). Rule 3(f) defined 'Selection Board' to mean a Selection Board appointed by the State Government to select persons for appointment to the Junior or Senior teaching posts and shall consist of the Principals of Medical Colleges in the State and such others as may be nominated by the Government. The 1973 Rules came to be repealed by another set of Rules dated 13th August, 1979 made under proviso to Article 309 of the Constitution, called 'The Orissa Medical Education Service (Recruitment) Rules, 1979 (for short, '1979 Rules'). Under these Rules, vide sub-rule (2) of Rule 4, minimum qualification of postgraduate degree in the concerned specialty or any other equivalent degree or qualification as prescribed by the Council was provided for appointment of Junior Teachers. Rule 3(f) provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 49 Junior Teachers appointed on ad hoc basis by the Government of Orissa from out of the regularly recruited Assistant Surgeons and posted in Medical Colleges of the State during the years 1980 and 1981 and are continuing as such on the date of commencement of this Act, shall, for all intends and purposes, be deemed to have been validly and regularly appointed in the service from the date of their appointment as such and no such appointment shall be challenged in any court of law merely on the ground that such appointments were made otherwise than in accordance with the procedure laid down in the Recruitment Rules. Sec.3 (2) The inter se seniority of the Junior Teachers whose appointments are so validated under Sub Section (1) shall be determined on the basis of their respective date of appointment as such. On 29th November, 2001, while issuing notice, this Court declined to interfere with the order to the extent it struck down Section 3(2) of the Validating Act and only issued limited notice concerning the validity of Section 3(1). Thus the only question that has been urged by learned counsel is about the validity of Section 3(1). In the objects and reasons of the V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 16 of the Constitution. It may also be noted that the ground that OPSC failed to appoint a member as the Chairman of the Selection Board in accordance with 1979 Rules and in the light of the urgency to fill up the vacancies, the said vacancies were filled up by the Selection Board constituted under the 1973 Rules, does not appear to be correct. The facts on record show a contrary position. By a letter dated 4th September, 1979, the Chairman of the OPSC had offered himself to be the Chairman of the Selection Board but no Selection Board was constituted under the 1979 Rules. A clarification in this regard was sought by OPSC by its letter dated 24th March, 1982 wherein the OPSC had specifically sought for an explanation in regard to the circumstances under which a member of the OPSC was not associated in the Selection Board meetings held on 04th July, 1980 and 10th November, 1980. In reply dated 20th September, 1982 to the above letter, the Secretary to the Government of Orissa, Health and Family Welfare Department did not clarify the abovementioned query and vaguely stated that : A large number of Junior Teaching posts in different discipline were lying vacant in the three Medic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whenever a person is appointed in a post without following the rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. In the present case, we are considering the validity of the appointments that were admittedly made without following 1979 Rules. The decision in Narender Chadha's case was rendered having regard to the factual scenario in that case. It cannot be pressed into service to support entirely illegal appointments. Reliance has also been placed by learned counsel to Para 7 of the decision in State of Orissa and Anr. v. Gopal Chandra Rath and Others [(1995) 6 SCC 242] holding that the Validation Act has removed the lacuna by changing the definition of the Selection Committee and consequently validating the appointments made by such committee during the period in question. In the said case, the basis for illegality pointed out by this Court was changed by Validating Act. It was held that it is too well settled that the Legislature has the power to validate an Act by removing the infirmity indicated in any judgment and that too also retrospectively but they cannot merely set aside, annul or override a judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature makes the said intention clear by the specific language of the Validating Act. It is open for the Legislature to change the very basis of the provisions retrospectively and to validate the actions on the changed basis. In the said case, it was held that the Legislature had changed the very basis of the provisions retrospectively as was apparent from the provisions of the Amending Act. In the present case as already noticed, the validating statute has done nothing of the kind and only sought to regularise illegal appointments without repealing the rules that were applicable at the relevant time or amending the definition of the Selection Board with retrospective effect. Reliance was also placed by Mr. Misra on Para 32 of the decision in the case of I.N. Saksena v. State of Madhya Pradesh [(1976) 4 SCC 750] holding that the State Legislature had legislative competence not only to change the service conditions of the State civil servants with retrospective effect but also to validate with retrospective force invalid executive orders retiring the servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who cannot be placed on a higher pedestal over those who were selected by OPSC and stood the test of merits, became successful and were appointed as per relevant Rules. We may also note that on 4th October, 1982, 1979 Rules were amended and selection through Selection Board was done away with and it was prescribed that the selection shall be made through OPSC. We may further note that Section 3(1) amounts to deeming of a legal position without deeming of a fact. It was observed in the case of Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan Ors. [(1996) 2 SCC 449] that a legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow. In this case the procedure as prescribed under Sections 4 to 7 of Rajasthan Municipalities Act, 1959, for inclusion of the villages of Raipura and Ummedganj in Kota Municipality was not followed. Under the Courts order and Judgment, Kota Municipality was restrained from imposing tax on the petitioner Company, which was situated in the said villages, on the ground that the said villages were not validly included in the Kota Municipa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded either to remove errors or to add provisions to confirm to constitutional requirements . In the case of Hari Singh Ors. v. The Military Estate Officer Anr. [(1972) 2 SCC 239] the Supreme Court held that The meaning of a Validating Act is to remove the causes for ineffectiveness or invalidating of actions or proceedings, which are validated by a legislative measure . The Supreme Court in the case of ITW Signode India Limited vs. Collector of Central Excise [(2004) 3 SCC 48] observed that A Validation Act removes actual or possible voidness, disability or other defect by confirming the validity of anything, which is or may be invalid. The purpose of a Validating Act is to remove the cause of ineffectiveness or invalidity. A Validating Act presupposes a positive act, on the part of the legislature, of removing the cause of ineffectiveness or invalidity. In the present case nothing has been done. Before concluding, we may notice another aspect that was pointed out by learned counsel. The Tribunal in its order observed that rightly or wrongly, Dr. K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been promoted to the higher rank since a long time and they have been hol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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