9911796707
TMI Blog1996 (12) TMI 426X X X X Extracts X X X X X X X X Extracts X X X X ..... t the backdrop facts leading to these proceedings. Backdrop Facts 3. One Dr. A.A. Mallick, Deputy Director, Health Department of the Government of Bihar, was in charge of Tuberculosis for a number of years while he was working as a member of the medical service of the State of Bihar. He was Director of the Tuberculosis center at Patna. Eradication of Tuberculosis was taken up as a part of 20-Point Programme in planned expenditure. The activities in the Tuberculosis center at Patna were extended to various districts. Since Dr. Mallick happened to be the Director of the center, he was made Deputy Director of the Scheme. The Government has also issued directions to the District Medical Officer to abide by the instructions of Dr. Mallick in implementation of the programme. He was made the Chairman of Selection Committee constituted by the Government consisting of himself, Assistant Director of Pilaria and a senior officer representing Scheduled Castes/Scheduled Tribes to recruit 2250 Class III and Class IV employees on posts created to implement the Scheme in addition to around 800 to 900 staff in Patna center in all categories. Taking advantage thereof, the undisputed fact is that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes in different newspapers inviting submission of the claims by all the employees appointed by Dr. Mallick, together with supporting material justifying their appointments. Different dates of hearing by the Committee were staggered. About 987 employees appeared before the Committee and submitted their statements. In the meanwhile, relevant records were burnt out. The High Power Committee in the absence of authentic record was constrained to depend upon the statements made by the employees before it. After hearing them and considering the record placed before it, the Committee found that Dr. Mallick did not make any order of appointment on daily-wage basis by following due procedure. It found it difficult to accept even the orders of confirmation. In that view, the Committee found that the initial appointments made by Dr. Mallick were in violation of the instructions issued by the Government. Therefore, they were found to be illegal appointments. The Committee also found that Dr. Mallick circumvented the rules by making adjustment by transfer without verifying the qualifications, eligibility or disclosing previous places whereat the candidates appointed had worked and dates of thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut authority of law. 5. When initial appointments were in violation or in negation of the rules or in other words when there were no orders for appointment there would remain no question of regularisation of such initially illegal appointments. To confer permanency of appointment to the posts by regularisation in violation of the executive instructions or rules is itself subversive of the procedure. 6. Without following due procedure prescribed under the circulars, regularisation of services of daily-wage employees could not be effected. 7. Principles of natural justice were not required to be followed in the present cases. Even otherwise there was due compliance with these principles. 8. As all the appointments were made in flagrant breach of the procedure and the executive instructions and amounted to blatant abuse of the centralised power held by Dr. Mallick and subversive of discipline, it was futile to issue writs as prayed for. 9. However Ramaswamy, J. was inclined to issue 11 directions in para 36 of his judgment for future recruitment of class III and IV employees in the Tuberculosis Eradication Programme, providing certain safeguards for considering the feasibili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not possible to know who the regularly appointed persons were the appellants, whose number is 1363, may be among those who were regularly appointed. 8. Consequently in view of the aforesaid findings Hansaria, J. was inclined to hold that justice had to be tempered with mercy in the light of Article 21 of the Constitution of India and as it was doubtful whether these 1363 appellants could be said to have been irregularly appointed, termination orders qua them were required to be set aside. It was made clear by Hansaria, J., that the said order would not in any way be taken advantage of except by the 1363 appellants before the Court. As noted earlier it is this difference of opinion between the two learned judges constituting the Division Bench, that has triggered off the present proceedings before this larger Bench. Rival Contentions 9. Learned Counsel for the appellants vehemently submitted that there was ample evidence on the record of these cases to show that Dr. Mallick was the appointing authority and was duly empowered to appoint Class III and Class IV employees on the programme regarding eradication of Tuberculosis which was taken up as a part of 20-Point Programme i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reinstatement with all consequential benefits. Dr. Dhavan, learned senior Counsel appearing for the appellants in appeals which were earlier delinked from this group but which were subsequently placed along with the group for disposal, namely, civil appeal arising out of S.L.P.(C) No. 14275 of 1994 and C.A. Nos. 10811-28 of 1995, submitted that 8 employees in civil appeal arising out of S.L.P.(C) No. 14275 of 1994 were not appointed by Dr. Mallick but were appointed by Dr. Mithilesh Kumar and, therefore, their appointments stood on a separate footing and could not have been nullified by adopting the general yardstick for voiding all the appointments made by Dr. Mallick. So far as the Civil Appeals Nos. 10811-28 of 1995 were concerned Dr. Dhavan submitted that appointments made by Dr. Mallick were in two phases, the first phase was reflected by the Government Order dated 25th March 1983 wherein Dr. Mallick had appointed number of employees under the Scheme. But the second phase started pursuant to the Government Order dated 31st January 1987 whereunder a programme was instituted for training Tuberculosis Attendants and Tuberculosis Assistants and once they were given training such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners who numbered 581 were all appointed (initially ad-hoc/daily wagers) in Class III and Class IV posts in connection with the T.B. Eradication Programme in the State of Bihar from the year 1980 onwards and were regularised on various dates thereafter (p. 146-166-S.L.P. paper book). By the additional affidavit dated 4.9.1994 particulars of the petitioners, their dates of ad-hoc/daily-rated appointments and their dates of regularisation, and (in many cases) subsequent promotion have been set out (pages 146-169 S.L.P. paper book). It was submitted that the initial appointments and regularisation of these employees were valid and proper. It was next submitted that by a letter dated 25th March 1988 the Joint Secretary (Health) confirmed and appointed Dr. A.A. Mallick as ex-officio Chairman of the Selection Committee and by a directive dated 24th July 1984 the Joint Secretary had directed the said Dr. Mallick to regularise the appointments made by him and to the same effect was the subsequent letter dated 17th October 1984 to the Chairman, T.B. Hospital directing regularisation of the daily wagers. In short similar contentions were sought to be raised in the written submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had enough financial power to create any number of post on the High Court establishment. That what was voided was the method by which the employees recruited on the High Court establishment were subsequently transferred to the establishments of subordinate courts and under these peculiar circumstances the appointees were permitted to continue in service without break. That in the present case though Dr. Mallick was authorised to recruit staff on the Tuberculosis Eradication Scheme, as there were only 2500 sanctioned posts, the wholesale appointments of 6000 persons made by him were clearly illegal and an exercise in futility. It was next contended that even though these posts may not be posts born on the regular cadres in the State service they were certainly to be vacancies which were required to be supported by sufficient financial budgets and unless there were vacancies covered by the planned expenditure budgeted for the purpose, no such appointments could be effected. Under these circumstances such appointees who were illegal appointees from the very beginning could not have been regularised. So far as the submissions of Dr. Dhavan were concerned it was submitted that there we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2250 employees on these sanctioned posts was a planned expenditure. AS these were the only sanctioned posts under the Scheme it passes one's comprehension as to how Dr. Mallick could persuade himself to recruit 6000 employees on these 2250 sanctioned posts. Learned Counsel for the appellants in written submissions tried to urge that there were more sanctioned posts while the learned Counsel for the State of Bihar tried to assert that Dr. Mallick had appointed approximately 7000 persons. But as both the learned judges constituting the Division Bench, namely, K. Ramaswamy J. and Hansaria, J. proceeded on the accepted position on record that Dr. Mallick unauthorisedly appointed 6000 employees on the sanctioned 2250 posts we will proceed on that basis. It becomes, therefore, clear that at least 3750 employees were drafted in the Scheme by Dr. Mallick without there being any vacancies to receive them. Under these circumstances their initial entry must be held to be totally unauthorised, incompetent and void. It is axiomatic that when these recruitments were not supported by any budgetary grants there will be no occasion to make available finances to meet their salary expenses. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for recruitment in Secretariat Services at Patna. It has been in terms laid down that in the Secretariat and its attached offices, a Selection Committee shall be constituted. It will be chaired by the head of the concerned establishment and one of the members of this Committee will be any senior officer as nominated by the Head of the Establishment. Other members of the Committee will be officers belonging to SC/ST working in the same department. As per this G.O. so far as recruitment to Class III posts is concerned a merit list has to be prepared on the basis of marks obtained by the candidates at school or college examinations and appointment to the vacant posts will be made according to the instructions enclosed with the concerned Resolution. The vacancies will have to be communicated to the nearest Employment Exchange of respondent areas wherein the concerned offices exist. So far as G.O. concerning recruitment to Class IV servants is concerned, the Committee appointed for the purpose has to publish the advertisement through the Employment Exchange as per the direction contained in Appointment Department Circular No. 8160 dated 21st June 1966. Government instructions regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Committee mentioned in the said Resolution will be the Committee for appointing such persons on the concerned programmes and to that extent the recruiting authority as mentioned in the earlier Government Orders would be superseded but it did nothing more than that. The procedure for recruitment, however, would remain the same even for the newly constituted Selection Committee as per the Resolution of 25th March 1983. Consequently it is not possible to agree with the contention of learned Counsel for the appellants that this Resolution of 25th March 1983 displaced and gave a send-off to the recruitment procedure laid down by the Government Orders of 3rd December 1980. It is also equally not possible to agree with the contention of learned Counsel for the appellants that as the recruitment was to be made on Tuberculosis Eradication Scheme under 20-Point Programme and the appointments were to be made to posts on any regular cadre of Bihar State Service the recruitment procedure laid down by earlier Government Orders of 3rd December 1980 would not stand attracted. It is easy to visualise that though the vacancies or posts, as the case may be, may not be in the regular Bihar State Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees therefore, remained a nullity. Learned Counsel for the appellants invited our attention to the chart showing the details of appointments of the concerned appellants as found at Annexure XXII at pages 243 to 253 of the paper book and also as a specimen a subsequent order of confirmation as found at page 256 in the case of Ashwani Kumar. It was submitted that such confirmation orders were also given to number of employees who were initially appointed as daily wagers/T.B. Assistants by Dr. Mallick. Our attention was also invited to the letter of Joint Secretary Shri Anant Shukla written to the Superintendent, T.B. Hospital, Koelwar, Bhojpur on 17th October 1984 which is found as Annexure-X at page 127 of the paper book to show that steps were taken for ratification of the orders of appointment of the daily wage employees as per the direction of Deputy Director, T.B./Health Services, Bihar. As we have seen earlier when the initial appointments by Dr. Mallick so far as these daily wagers were concerned, were illegal there was no question of regularising such employees and no rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arises in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the concerned incumbent. 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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible to agree with the contention of 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. We may also at this stage refer to additional written submissions filed on behalf of the appellants in C.A. Nos. 10831-10985. In these written submissions reliance is placed on the judgment of one of us, A.M. Ahmadi, J. (as His Lordship then was), in the case of Jacob M. Puthuparambil and Ors. Etc. Etc. v. Kerala Water Authority and Ors. Etc. Etc. (1991) IILLJ 65 SC. In the said decision it was held that when ad hoc employees who were continued for two years or more (in some cases one year or more) were entitled to be regularised subject to availability of vacancies. The aforesaid decision cannot be of any avail to the appellants for the simple reason that once we find that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when recruitment is to be made it must be made on available vacancies or sanctioned posts under the Scheme and that too after following due procedure of recruitment. That was never done by Dr. Mallick. Therefore, the so-called second phase cannot improve the position for the appellants in any manner. Dr. Dhavan then submitted that at least so for as 8 appellants in Civil Appeal arising out of S.L.P. (C) No. 14275 of 1994 are concerned, they were not appointed by Dr. Mallick but were appointed by Dr. Mithilesh Kumar. In para 3 of S.L.P. (C) No. 14275 of 1994 it has been stated that one letter was issued by the then Deputy Director (T.B.), Dr. Mallick on 23rd November 1989 by which the Civil Surgeon-cum-Chief Medical Officer Madhubani was directed to absorb petitioner No. 2 according to his qualification against a Class III post and accordingly he was appointed. At page 83 is found the recital as regards petitioner Nos. 7 and 8, to the effect that with respect to them Dr. Mallick, the then Deputy Director (T.B.) Health Services issued one letter dated 12th January 1990 recommending for their absorption against Class III posts according to their qualification and that is how they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otally unauthorised and were squatting against non-existing vacancies. A grave 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. When such a grave situation had arisen and when matters had gone up to the High Court wherein the State was directed to appoint a Committee to thoroughly investigate the entire matter, the State of Bihar had to appoint a Committee to scrutinise these appointments and to filter them as directed by the High Court of Patna. For undertaking the said exercise public notices were issued by the Director-in-Chief, Health Service, Bihar, Patna by communication dated 4th July 1992. The said communication which is found at page 147 of the paper book recites that Dr. Mallick, the then Deputy Director (T.B.) presently retired, issued orders of appointment/posting/transfer/absorption on a large scale against the Class III and Class IV posts in the T.B. Eradication Programme under the Directorate of Health Services without following the procedure for appointments/without publication of advertisement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dr. Mallick after 1.1.1980 should be examined. Accordingly all the concerned officials were given opportunity to submit show cause replies before the Director-in-Chief, Health Service Bihar, Patna by 25.7.92, after getting the notice to show cause advertised on 4.7.92 and also were given opportunity for personal hearing after fixing separate dates for officials appointed year wise from 1980 till August-September 1992. A committee of the officers mentioned in paragraph 4 was appointed to review the show cause replies mentioned in paragraph 3 and information received in course of personal hearings. The committee had to review the merits/demerits of the appointments under question in the light of policy and procedures prescribed by Government from time to time for appointment in Public Service and submit its recommendation to the Government. The learned Counsel for the appellants submitted that appointment of this review committee was after the personal hearing before the Director-in-Chief. Health Service, Bihar, Patna and therefore, this violated the basic principles of natural justice. It is difficult to agree. All the concerned appointees whose appointments by Dr. Mallick were to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... source of their recruitment is found to be tainted all of them have to go by the board. Nor can we say that benefit can be made available only to 1363 appellants before as the other employees similarly circumscribed and who might not have approached the High Court or this Court earlier and who may be waiting in the wings would also be entitled to claim similar relief against the State which has to give equal treatment to all of them otherwise it would be held guilty of discriminatory treatment which could not be countenanced under Articles 14 and 16(1) of the Constitution of India. Everything, therefore, must start on the clean slate. Reliance placed by learned Counsel for the appellants on the doctrine of tempering justice with mercy also cannot be pressed in service on the peculiar facts of these cases as mercy also has to be based on justice. The decision of this Court in the case of H.C. Puttaswamy (supra) also can be of no assistance to the appellants on the facts of the present cases as in that case the Chief Justice of the High Court had full financial powers to create any number of vacancies on the establishment of the High Court as required and to fill them up. There was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tuberculosis Eradication Scheme effective and fully operative. When that is the need of the day, it would be appropriate to direct the State to undertake that exercise at the earliest and while doing so after following the due procedure of recruitment and the rules government the same, give an opportunity to these 6000 unfortunate creatures of Dr. Mallick to compete for the said posts in the future recruitment that may be undertaken by the State and in the process because of the experience which they have gathered in their past service under the Tuberculosis Programme and the training which they might have received pursuant to the Government Order dated 31.1.1987, due weightage also be given to them while considering their eligibility for being recruited in service as and when such future exercise is undertaken. Consequently we deem it fit to issue the following directions to the respondent State of Bihar in this connection: 1. Respondent-State of Bihar may start at the earliest a fresh exercise for recruiting Class III and Class IV employees in the Tuberculosis Eradication Programme undertaken by the State as a part of 20-Point Programme on the available 2250 vacancies or ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marks for each completed year of continuous working upto the maximum of 6 marks, for each candidate. Candidates appointed by Dr. Mallick who are found to have undertaken training pursuant to Government direction dated 31.1.1987 may be awarded 2 additional marks for the training so received. Those 2 marks will be in addition to the 6 marks which are to be awarded on completion of meritorious and honest service by the concerned employees as mentioned above. 8. If the concerned candidates who were earlier appointed by Dr. Mallick are found by the committee to be otherwise eligible for being appointed to Class III and Class IV posts as per the relevant rules and regulations and if on the basis of the marks allotted to them as aforesaid they become eligible to be appointed besides other competing candidates, then if they are found to have become age barred the condition of age for recruitment of such candidates should be relaxed appropriately so as to entitle such candidates to be considered for selection. 9. The State Government shall arrange sittings of the Selection Committee preferably within two months from the last date prescribed for submitting the applications and for compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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