Full Judgment Text
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CASE NO.:
Appeal (civil) 4310 of 2007
PETITIONER:
State of Jharkhand and Ors
RESPONDENT:
Manshu Kumbhkar
DATE OF JUDGMENT: 17/09/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 4310 OF 2007
(Arising out of S.L.P. (C) No. 18890 of 2005)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
Division Bench of the Jharkhand High Court dismissing the
Letters Patent Appeal filed by the appellant-State and its
functionaries.
3. Background facts in a nutshell are as follows:
One Miss Suraj Mani Khalko, a few days before her
retirement made many appointments to the posts of Class III
and Class IV employees without following the procedure of
appointment stipulated by instruction dated 3.12.1980. No
records were available in the office for such appointments,
namely, advertisement, requisition to employment exchange,
committee for preparing panel to be chaired by District
Magistrate, with District Welfare Officer and three officers of
different district levels. According to the respondent
advertisement was issued for Class III and Class IV employees
on 4.6.1993 and on 12.7.1993 interview letters were issued.
According to the appellants all these were signed by Miss
Suraj Mani Khalko and were fabricated and forged documents
and were never issued by the department which is manifest
from the dispatch register. On 16.9.1993 the appointment
letter was purportedly issued and the respondent claimed to
have joined on 21.9.1993, but he was not paid his salary. A
few days thereafter i.e. on 15.10.1993 illegal appointments
made by Miss Suraj Mani Khalko were cancelled by the
Government. The respondent filed a writ petition in the year
1995 before the Jharkhand High Court. The High Court
dismissed the writ petition by its order dated 28.8.1995 with
the direction to the respondent to file fresh representation with
all materials i.e. letter of appointment etc. before the authority.
Direction was also given to make payment of admitted dues
since 21.9.1993 till date. The respondent did not file any
representation as was directed by the High Court. On the
basis of the direction given by the High Court in CWJC
No.3878/1995, Deputy Commissioner was appointed to make
an inquiry. By report dated 10.4.1997, the Deputy
Commissioner found all the appointments to be illegal. By
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order dated 22.4.1997 the services of respondent, Sri Sanjay
Kumar and three others were terminated by the District
Education Officer. Respondent filed CWJC No.829/1998.
Several terminated employees filed writ petitions which were
dismissed by the High Court on the ground that the
appointments were violative of Articles 14 and 16 of the
Constitution of India, 1950 (in short ’the Constitution’) as they
had been made without following the requisite procedure.
Learned Single Judge allowed the writ petition filed by the
respondent on the ground that Sanjay Kumar had been
appointed pursuant to the order passed by the High Court.
The Letters Patent Appeal filed as aforesaid was dismissed.
4. Learned counsel for the appellants submitted that on the
basis of the norms fixed for appointment, due procedure was
not followed. Merely because somebody else had granted
appointment, that cannot be a ground to claim that wrong
should be perpetuated. On the basis of the norms fixed by the
Department of Personnel and Administrative Reforms dated
3.12.1980, specific modalities were required to be followed. It
is to be noted that in Sanjay Kumar’s case LPA was dismissed
on the ground of delay and, therefore, was not a precedent to
be followed. Reference is made to the decision of this Court in
Secretary, State of Karnataka and Ors. v. Umadevi (3) and
Ors. (2006 (4) SCC 1) to contend that the learned Single Judge
could not have passed the order for regularization.
5. In response, learned counsel for the respondent stated
that it is not a case of regularisation. There was an
advertisement, there was a vacancy, panel of selection was
duly constituted and, therefore, no interference is called for.
6. In the instant case, the norms have been fixed not by any
Rule but by administrative instructions. As noted above,
stand of the appellant is that 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. The stand that letter of appointment was
issued clearly gets negatived when the entries from the
dispatch register are noted. According to the respondent
interview letters were issued on 12.7.1993 and advertisement
was issued on 4.6.1993. There is no entry in the dispatch
register for these two dates. The details are annexed to P-9 to
the rejoinder affidavit.
7. It is to be noted that by order dated 4.9.1996 in CWJC
No.3878/95 the High Court noted as follows:
"A revealing fact has been disclosed that
taking advantage of the orders passed by this
Court, as mentioned in Annexures-5 to 8, this
Respondent No.4 is squandering the
government money and getting the back dated
appointment letter issued from regional
Deputy Director of Education, North
Chotanagpur Division, Hazaribagh, now
retired without the knowledge of the District
Establishment Committee, whose Chairman
is Deputy Commissioner."
8. Reliance by the High Court on the order passed in
Sanjay Kumar’s case (supra) was thoroughly misconceived. It
is to be noted that LPA was dismissed on the ground of delay.
Even otherwise, merely because mistake had been committed
in one case, there is no rational for perpetuating that mistake,
even when the same is illegally impermissible. It is to be
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noted that in terms of the executive instructions, the following
procedure was to be adopted:
"6. On other category of class-4 posts the
appointments will be made through District
employment exchange as far as practicable
from local areas. Because only one panel for
the appointment of class-4 employees will be
prepared for appointment at district level which
will be effective for one year, the district officer
will give extensive publicity to the
advertisement calling for applications and
examine the applications. Every applicant will
quote his registration region/the district
exchange. If due to any reason the District
employment officer does not recommend his
name then the Collector will admit his
application on the ground of registration No.
and will consider the application and the
District Magistrate will as per necessity,
examine the list as recommended by the
Employment Exchange for appointment.
7. For recruitment to such posts a
committee will be formed to be chaired by the
District Magistrates and members of such a
committee will be district welfare officer,
district employment officers and three senior
officers of different district levels working
department as nominated by the district
magistrates and two officers from the
department of district level developmental
works. For appointment to the class-4 posts
in every district a list of suitable candidates
will be prepared finally by the said committee
at the outset of the financial year by the
month of May and appointments through year
by the financial year would be made in all
offices from this list. So far as the current
financial year is concerned, if a list of suitable
candidate has already been prepared in
keeping with memo No.10747 dated 20th June
in any district, then the recruitment in the
current year should be made from the list but
if there is no such list prepared in any district
according to the above memo then such a list
should be got prepared by aforesaid district
levels committee by 31st December, 1980.
District Magistrates are hereby requested that
they should sent by 15th Feb., 1981 a detailed
statement in the enclosed proforma about
appointments made in every district level
officers uptill 31st January, 1981 keeping in
view the above procedure. The report
regarding the appointment made from the list
prepared for next financial year in accordance
with the above procedure should be sent to
the department of personnel till 15th July,
1981."
9. In Ashwani Kumar and Ors. v. State of Bihar and Ors.
(1997 (2) SCC 1), it was noted in paras 13 and 14 as follows:
"13. So far as the question of confirmation of
these employees whose entry itself was illegal
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and void, is concerned, it is to be noted that
question of confirmation or regularisation of
an irregularly appointed candidate would
arise if the candidate concerned is appointed
in an irregular manner or on ad hoc basis
against an available vacancy which is already
sanctioned. But if the initial entry itself is
unauthorised and is not against any
sanctioned vacancy, question of regularising
the incumbent on such a non-existing
vacancy would never survive for consideration
and even if such purported regularisation or
confirmation is given it would be an exercise
in futility. It would amount to decorating a
still-born baby. Under these circumstances
there was no occasion to regularise them or to
give them valid confirmation. The so-called
exercise of confirming these employees,
therefore, remained a nullity.
xxx xxx xxx
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 right accrued to them as
they were not confirmed on available clear
vacancies under the Scheme. It passes one’s
comprehension as to how against 2500
sanctioned vacancies confirmation could have
been given to 6000 employees. The whole
exercise remained in the realm of an
unauthorised adventure. Nothing could come
out of nothing.
xxx xxx xxx
Zero multiplied by zero remains zero.
Consequently no sustenance can be drawn by
the appellants from these confirmation orders
issued to them by Dr Mallick on the basis of
the directions issued by the authorities
concerned at the relevant time. It would
amount to regularisation of back-door entries
which were vitiated from the very inception.
xxx xxx xxx
Whether they are posts or vacancies they
must be backed up by budgetary provisions
so as to be included within the permissible
infrastructure of the Scheme. Any posting
which is dehors the budgetary grant and on a
non-existing vacancy would be outside the
sanctioned scheme and would remain totally
unauthorised. No right would accrue to the
incumbent of such an imaginary or shadow
vacancy.
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
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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. The second type of a situation in
which the question of regularisation may arise
would be when the initial entry of the
employee against an available 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 arise in the light of the exigency of
administrative requirement for waiving such
irregularity in the initial appointment by a
competent authority and the irregular initial
appointment may be regularised and security
of tenure may be made available to the
incumbent concerned. 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. The learned counsel for the
appellants, therefore, could not justifiably fall
back upon the orders of regularisation passed
in their favour by Dr Mallick. Even otherwise
for a regularising such employees well-
established procedure had to be followed.
xxx xxx xxx
Even this letter clearly indicates that the
posts had to be filled up by following the
prescribed procedure. Despite all these
communications neither the initial
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appointments nor the confirmations were
done by following the prescribed procedure.
On the contrary all efforts were made to
bypass the recruitment procedure known to
law which resulted in clear violation of
Articles 14 and 16(1) of the Constitution of
India both at the initial stage as well as at the
stage of confirmation of these illegal entrants.
The so-called regularisations and
confirmations could not be relied on as
shields to cover up initial illegal and void
actions or to perpetuate the corrupt methods
by which these 6000 initial entrants were
drafted in the Scheme by Dr Mallick. 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."
10. This decision was noted in para 31 of Uma Devi’s case
(supra).
11. Above being the position, the order of the learned Single
Judge, as maintained by the Division Bench cannot be
sustained.
12. The appeal is allowed without any order as to costs.