# ASHWANI KUMAR AND ORS. ETC. ETC v. STATE OF BIHAR AND ORS. ETC. ETC

- **Citation:** [1995] Supp. 5 S.C.R. 367
- **Court:** Supreme Court of India
- **Decided:** 1995-11-16
- **Case number:** Civil Appeal Nos. 10758-59 of 1995
- **Bench:** K. Ramaswamy, B.L. Hansaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashwani-kumar-and-ors-etc-etc-v-state-of-bihar-and-ors-etc-etc-13548
- **Pages:** 54

## Headnote

Service Law-Appointment~Procedur~Existence of law or statutory
rule~T11hether a precondition either to post or to fill up that post-Existence
of a post-Whether a condition precedent for appointment-Casual
labourer~Whether holders of post~Regulalisation-Procedure to be f allowed-Advertisement of post-Whether necessary-Non-information to
employment exchange for filling up posts-Non preparation of any panel by
Selection Committe~Whether fatal-Requirements of natural justic~Ter
mination of service-Natural Justice -Principles Requirements of-Validity
of tennination orders----Matters refe1red to larger Bench.
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. The Director of the
Center one ·Mr. M was made Deputy Director of the Scheme. The Government had also issued directions to the District Medical officers to abide
by the instruction of the Deputy Director in implementation of the
Programme. He was made the Chairman of the Selection Committee
constituted by the Government to recruit 2250 posts of Class III and Class
IV employees created to implement the Scheme in addition to around 800
to 900 staff in Patna Centre in all categories. Mr. M appointed around
6000 persons without any written orders. Questions relating to this came
to be asked even on the floor of the Assembly when the concerned Minister
stated that the appointments had been given after following all procedures.
A
B
c
D
E
F
Due to the agitation, the Director and Joint Secretary to the Government
Health Department had issued directions to regularise the service of daily G
rated Class III and Class IV employees. Regularisation of many of them
including most of the appellants was made. Various persons not getting
their salary, though appointed, filed writ petitions before the High Court.
The High Court directed the Government to constitute an enquiry committee to find out whether the appointments made by Mr. M. were valid and
if so, to pay salary to such employees. Pursuant to these observations, a H
367
368
SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
A
Screening Committee came to be formed which sought to serve notice on
the employees. When the Deputy Director went to the Centre to serve the
notice on the employees, he was manhandled. In consequence, the Committee issued a general notice through newspapers to all concerned and
directed them to appear before the Committee for personal hearing. About
B
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, relying upon the statement
made by the employee before it and considering the record placed before
it, found that Mr; M did not make any order of appointment on daily-wage
basis; that the initial appointments made were in violation of the instrucC
tions issued by the Government; that Mr. M. 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 their appointment and by transferring them to
the respective places by cyclostyled orders; that the third category of
D person appointed were producing fabricated orders of appointment. The
Committee directed to cancel all the appointments made by Mr. M. The
Government also directed the Vigilance Department to enquire into the
matter. The Vigilance Department in its report pointed out that Mr. M
had violated the rules of recruitment and in collusion with other officers
had appointed daily rated Class III and Class IV employees. The GovernE
ment cancelled all the appointments. When their legality was challenged
in the writ petitions filed under Art. 226 of the Constitution, the High
Court upheld the Government action. Hence these appeals by special leave.
The appellants alleged that c

## Text

_Characters 0–39,821 of 137,474. This is a partial read: ask again with offset=39821 for what follows._

ASHWANI KUMAR AND ORS. ETC. ETC.
v.
STATE OF BIHAR AND ORS. ETC. ETC.
NOVEMBER 16, 1995
[K. RAMASWAMY AND B.L. HANSARIA, JJ.]
Service Law-Appointment~Procedur~Existence of law or statutory
rule~T11hether a precondition either to post or to fill up that post-Existence
of a post-Whether a condition precedent for appointment-Casual
labourer~Whether holders of post~Regulalisation-Procedure to be f allowed-Advertisement of post-Whether necessary-Non-information to
employment exchange for filling up posts-Non preparation of any panel by
Selection Committe~Whether fatal-Requirements of natural justic~Ter
mination of service-Natural Justice -Principles Requirements of-Validity
of tennination orders----Matters refe1red to larger Bench.
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. The Director of the
Center one ·Mr. M was made Deputy Director of the Scheme. The Government had also issued directions to the District Medical officers to abide
by the instruction of the Deputy Director in implementation of the
Programme. He was made the Chairman of the Selection Committee
constituted by the Government to recruit 2250 posts of Class III and Class
IV employees created to implement the Scheme in addition to around 800
to 900 staff in Patna Centre in all categories. Mr. M appointed around
6000 persons without any written orders. Questions relating to this came
to be asked even on the floor of the Assembly when the concerned Minister
stated that the appointments had been given after following all procedures.
A
B
c
D
E
F
Due to the agitation, the Director and Joint Secretary to the Government
Health Department had issued directions to regularise the service of daily G
rated Class III and Class IV employees. Regularisation of many of them
including most of the appellants was made. Various persons not getting
their salary, though appointed, filed writ petitions before the High Court.
The High Court directed the Government to constitute an enquiry committee to find out whether the appointments made by Mr. M. were valid and
if so, to pay salary to such employees. Pursuant to these observations, a H
367
368
SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
A
Screening Committee came to be formed which sought to serve notice on
the employees. When the Deputy Director went to the Centre to serve the
notice on the employees, he was manhandled. In consequence, the Committee issued a general notice through newspapers to all concerned and
directed them to appear before the Committee for personal hearing. About
B
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, relying upon the statement
made by the employee before it and considering the record placed before
it, found that Mr; M did not make any order of appointment on daily-wage
basis; that the initial appointments made were in violation of the instrucC
tions issued by the Government; that Mr. M. 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 their appointment and by transferring them to
the respective places by cyclostyled orders; that the third category of
D person appointed were producing fabricated orders of appointment. The
Committee directed to cancel all the appointments made by Mr. M. The
Government also directed the Vigilance Department to enquire into the
matter. The Vigilance Department in its report pointed out that Mr. M
had violated the rules of recruitment and in collusion with other officers
had appointed daily rated Class III and Class IV employees. The GovernE
ment cancelled all the appointments. When their legality was challenged
in the writ petitions filed under Art. 226 of the Constitution, the High
Court upheld the Government action. Hence these appeals by special leave.
The appellants alleged that casual appointments are not to any
p
posts; that eradiction of tuberculosis urgently required to be done on
war-footing which relieved the Joint Director to dispense with normal
procedure of recruitment and he being exclusive centralised authority to
appoint Class II and Class IV casual employees he had picked up the
candidates who applied for appointment pursuant to notification put up
on the office notice Board; that they had discharged their duties, many of
G them meritoriously and were later promoted to higher posts; that security
of tenure is a Constitutional right and Regularisation of service is inherent
in it; that the Director of Health Department-cum-joint Secretary to the
Government had directed regularisation of all those who had completed
'three years' service, and of those with less then two years; service
H regularisation was to be done to the extent of available vacant post on
ASHWANIKR. v. STATEOFBIHAR
369
seniority basis; that the procedure for recruitment prescribed in the A
instructions dated 3-12-1980 and 25-11-1982 did not apply to regularisation; that no statutory rules need to exist for initial appointment; that the
administrative instructions issued by the Government in 1980, 1982, 1983
and 1986 circulars could be modified by further administrative instructions and the instructions and directions contained in letters dated
10.10.1985, 19-1-1986 and 12-2-1987 were special rules, which are exceptions to general directions for regularisation of the service of daily-rated
employees and in compliance therewith, their services were duly
regularised and the need, therefore, to follow the procedure prescribed in
1980, 1982 and 1983 circulars would not arise and they would be applicable only for regular recruitment to other posts, 'since the appointments by Mr. M had been made by regularisation of their services, the
same were valid; that pursuant to a notice of motion given by MLAs, the
Government admitted on the floor of the legislative Assembly that the
appointments made by Mr. M were legal and valid; that the appellants
were in dark as to whether their appointments were in accordance with the D
prescribed procedure; that even if the instructions were considered mandatory, when their violation would visit with deprivation of employment to
B
c
the daily-rated employees, the appellants had no control over the procedure for recruitment or regularisation and so the instructions should be
constructed to be directory; that having accepted the appointments made
by Mr.Mas valid, it would not be open to the Government to contend that
the appointments or regularisation were invalid or in violation of the
procedure of inviting the applications by advertisement or calling the
names from employment exchange; that the omission to adopt selection
process was not valid; that to regularise the service of the appellants and
others, the procedure prescribed for initial recruitment did not apply; that
the respondents were merely required to regularise the services of the
appellants and others though the initial appointment were made de hors
E
F
the rules; that since no notice was served personally on any of the appellants, the procedure of publication of the notice in the daily newspapers
informing the appellants to come before the High Power Committee con- G
stituted by the Government was violative of the principles of natural
justice; that those persons whose appointments were regularised had
weeded out their previous record of appointment and service record,
therefore statutory presumption u/s 114(e) of the Indian Evidence Act that
the official acts were regularly performed by Mr. M. proved that the H
370
SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
A
appointment by regularisation were valid; that this was for the Government to establish that all the appointments were not made in accordance
~th the rules which burden the Government had failed to discharge; that
the appellants could not be penalised for non-production of the records as
they had worked for sufficiently long time which itself created a right in
B
their favour for regularisation which was done and orders had become
final and it was no longer open for the State to contend that the appointments 'lf the appellants were not valid or legal; that when regularisation
was to be made, the need to publish the vacancies and advertisement in
newspapers etc. and to call names from the employment exchange was
obviated lest it would amount to fresh recruitment which was not conC
templated under th'e instructions issued by the Government; that when no
procedure was prescribed for appointment of casual employees, mere
working for long period as found in the muster rolls, would give them right
to regularisation and the appellants having worked for 6 to 8 years, their
dismissal would amount to inflicting punishment without following the
D
procedure; that violation of the procedure for appointment does not
render the appointments, even assuming they were illegally made, void as
they would be curable irregularity and regularisation cured the defect; that
those who were· awaiting regular recruitment could challenge the procedure for appointment adopted by Mr. M to be illegal, but the same would
not be a ground for the Government to take such a stand as infraction of
E
either the rules or the procedure would be only a ground for the Government to proceed departmentally against concerned erring officers but the
employees should not be penalised nor should the security of service be
jeopardised; that even if rules of reservation were not followed, appropriate directions might be given to follow them and fill the posts
F
reserved for the respective quota of Scheduled Castes, Scheduled Tribes
and Backward Classes.
In two sets of individual cases, the appellants argued with reference
to the special facts in their case, alleging that their initial appointments
were in accordance with the procedure followed by a committee constituted
G
for selection and they were later regularised and their termination, therefore, was invalid in law.
Disposing of the matter this Court
H
HELD : (By the Court) In view of disagreement among the Judges
J.
ASHWANIKR. v. STATEOFBIHAR
371
in the two - Judges Bench, the Registry is directed to place all the matters A
before a Bench of three Judges for decision. [ 420-F]
Per Ramaswamy, !.
1. Existence of law or statutory rules made under proviso to Article B
309 of the Constitution is not a pre-condition either to create a post or to
fill up the post; Government having legislative backing on the subject, has
executive power to lay down the conditions of service and prescribe procedure (or appointment to the post or vacancies in accordance therewith.
Simultaneously, the Government would be entitled to create posts. The
instructions and the procedure thus laid down be subject to law made by C
the Legislature or rules made under proviso to Article 309. They could be
amended by subsequent instructions. They may supplant the rules. But
they should be consistent with the rights guaranteed under Articles 14 and
16 (1) of the Constitution. (387-F-H]
T. Cajee v. U. Jormanik Siem & Anr., (1961] 1 SCR 750; B.N.
Nagarajan & Ors. v. State of Mysore & Ors., (1966] 3 SCR 682; P.C. Sethi &
Ors. v. Union of India & Ors., (1975] 3 SCR 201; Ramesh Prasad Singh v.
State of Bihar & Ors., (1978] 1 SCC 37; Kamal Kanti Dutta & Ors. v. Union
of India & Ors., (1980] 3 SCR 811 and State of Hmyana & Ors. v. Piara
Singh & Ors., (1992] 4 SCC 118, relied on.
D
E
1.1. Existence of a post is a condition precedent for appointment
whether it is created by statutory rules or under the executive instructions.
There cannot be an appointment or employment without pre-existing post.
Therefore, a post is service or employment under the State and the post F
may be created before appointment or simultaneously with it. Though,
therefore, employment is not a post, the holder must be appointed to a post.
A casual labourer who discharges transitory or casual duties for emergent
work, therefore, does not hold a post though he may be under the administrative control of the State during the period of his working. A person
appointed, though on casual basis to discharge the duties of the existing G
post or vacancies, needs to be appointed to the post or vacancy according
to rules and, if so, he and he alone is a holder of the post. (390-D-F]
Union of India v. Deepchand Pandey & Anr., (1992] 4 SCC 432;
R.NA. Blitto v. Chief Executive Officer & Ors., (1995] 4 SCC 8, relied on.
H
372
SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.
A
1.2. In the instant case, no statutory rules were operating in the field.
B
Thertfore, the administrative instructions consistent with the right
guaranteed under Articles 14 and 16 (1) of the Constitution should have
regulated the procedure for appointment to the posts. Admittedly, two
circulars issued on December 3, 1980 regulated recruitment to Class III
and Class IV employees. They also envisaged drawing the names of the
candidates from the employment exchange and also following the rules of
reservation prescribed by the State Government to the Scheduled Castes
and Scheduled Tribes and the backward classes. The circular dated 25th
March, 1982 prescribed constitution of a committee consisting of the
Deputy Director, Tuberculosis, the Assistant Director, Pilaria and a senior
C
officer in the Department belonging to Scheduled Castes or Scheduled
Tribes to be its members to select the candidates in the order of merit on
the basis of the marks secured in the qualifying examination etc. and the
appointments be made by the appointing authority, viz., the Deputy Director from the merit list prepared by the Committee following the roster
D
points. Admittedly, no appointment orders were issued for initial appointment for casual Class III or Class IV employees. A Committee was constituted and recruitment was made from amongst the candidates who had
applied pursuant to the publication of vacancies on the notice Board of
the office at Patna Centre and the rules ~ere followed. [390-H; 391-A-D]
E
F
1.3. Illustration (e) of Section 114 of the Indian Evidence Act permits
that Court to presume that official acts have been regularly performed .
. But it is only rebuttable presumption. It could be rebutted by adduction
of evidence or by attending refutable circumstances. In view of the admitted fact that no letters of appointment were issued to a many as 6000
odd employees by Mr. M. Deputy Director of the Scheme, including all the
appellants to fill up 2250 posts, itself was a positive fact which would
conclusively establish that he had not kept up vacancy position in mind
nor followed the procedure prescribed in the circulars. The presumption
under Section 114, Illustration (e) did not get attracted to the facts of these
cases. Where a statute imposes a public duty and lays down the manner
G in which the duty shall be performed, injustice or inconvenience resulting
from rigid adherence to the statutory prescription to those who have no
control over the procedure, may be relevant factor to hold such prescription as directory. Application of this rule to recruitment for appointment
to a pos~ under the State would be fraught with grave danger and would
H be field day for flagrant violation of the rules and would seek legitimacy
ASHWANI KR. v. STATE OF BIHAR
373
under the carpet of section 114, Illustration (e) of the Evidence Act.
A
[391-H; 392-A-C]
1.4. Direct recruitment and promotion are the two modes and
regularisation by placing the service record of the ad hoc employees before
the Public Service Commission and their selection is a hybrid procedure B
not contemplated under the rules. If initial appointments were made in
accordance with the procedure prescribed under the rules or instructions
following the rule of reservation etc. and posts were filled up with temporary or ad hoc or daily-wage employees . and when their services are
regularised, the need to follow the self-same procedure would obviously be
redundant. When initial appointments are in violation or in negation of C
the rules, i.e. in the eyes of law there is no order for appointment, for
regularisation also if the procedure prescribed also is not followed, it
would be field day for the appointment authority to buttress his arbitrary,
corrupt and illegal acts of appointment without letters or orders of appointments and regularisation would be taken as a shield to cover up
illegal or void actions or to perpetrate further corrupt actions. To confer D
permanency of appointment to the posts by regularisation in violation of
the executive instructions or rules is itself subversive ::if the procedure. It
would, therefore, be mandatory that the procedure prescribed in the
circulars should be followed for regularisation of the services of the
daily-rated employees. [392-E-H; 393-A-B]
1.5. Contents of the cyclostyled letters clearly showed that there was
no reference (1) of the dates on which the candidates were first appointed
E
and the place at which they were working; lengths of service put in by the
candidates, (2) whether the committee constituted had selected the canF
didates, and if so, on what date they were regularised, (3) whether those
appointments were in furtherance of the regularisation of the Committee.
Their suitability was not mentioned. There was an admission therein that
the material placed by the candidates was not scrutinised. From this
intrinsic evidence and in the absence of any authentic record of the
Government, it would be highly difficult and hazardous to countenance the G
contention raised by the counsel for the appellants that appointments of
the appellants, though initially not in writing, got crystallised into confirmation by regularisation; a right thus got vested in them and could not be
taken away by arbitrary exercise of the power of termination on the solitary
ground that all those appointment were made by M. It was not the case of H
374
SUPREME COURT R,EPORTS [1995) SUPP. 5 S.C.R.
A
any of the appellants that after the regularisation of their services, they
had weeded out their previous records. On the other hand, some of them
placed it before the Committee and this Court. The presumption that
regularisation was in accordance with the procedure and was valid could
not be drawn. [393-F-G; 394-B-E]
B
1.6. Except putting up the vacancies on the notice Board of the Tuberculosis Centre at Patna, no advertisement inviting application from the
open market was made nor were the names called from the employment
exchange. Regularisation should also be in accordance with the procedure
prescribed and after calling the names from employment exchange and tliat
C
the selection should be made by duly constituted committee or by an open
competition. The ad hoc employees should give place to the candidates
recruited and appointed from the open market. One ad hoc employee
cannot be replaced by another ad hoc employee. Regularisation of the
casual labour was also directed to be done in accordance with the procedure prescribed in the circulars issued by the Government. The procedure
D adopted by M either appointing or directing to appoint persons who had
applied for appointment pursuant to the notification of vacancies put up
on the notice Board was stage managed by him and was in flagrant breach
of Articles 14 and 16 (1) of the Constitution. [394-E-H; 395-A]
E
2. More than 6000 persons were appointed to hold 2250 posts. The
Scrutiny Committee recorded three crucial facts. Initially, no letter of
appointments were made on daily-wage basis; secondly, adjustment by
transfer d.id not mention pervious place of posting but directed the District
Medical Officers to post the candidates after verification of qualifications;
and thirdly, fabricated orders of appointment were produced. The record
F
in the custody of the Government was found burnt. When the Committee
sought to serve the notices on the daily-rated employees at Patna Center,
the Deputy Director, Health Services was manhandled and law and order
situation had developed. Resultantly, wide publicity was given in the press.
The sittings of the Committee on different dates were staggered to 10 days
G and large number of employees to whom salaries were not paid had approached the High Court. The constitution of the Committee and the enquiry made by it into the legality and validity of the appointments made by
M were obviously facts widely known to everyone. [395-C-F]
3. With the aid of principles of natural justice, the Courts preserve
H rule of law keeping arbitrary action by the executive or the legislature
ASHW ANI KR. v. STATE. OF BIHAR
375
within the confines of law. Courts have to examine in each case the balance A
of fairness, whether the violation of the principle of audio alteram partem
visits with irremediable civil consequences and its incursion on administration, if action is invalidated. No set rule or standard of universal
application can possibly be laid for application to all sets of cases. Courts
exercise their power of judicial review with circumspection to weigh in
balance the fairness of action. Therefore, though the principles of natural
justice are omnipervasive, in given circumstances, their non-application
may also advance cause of justice to prevent misuse or abuse of power or
B
of the judicial process. It is settled law that post-decisional opportunity is
valid to cure the illegality complained of. (396-A-C]
In the instant case the committee scrutinised the appointment letters
made by M to Class III and Class IV posts in the Tuberculosis bl'anch of
Medical Science. Individual notices were sought to be served to all the
candidates though they were 6000 or more. But when the officers who tried
c
to serve the notices were beaten up, its repetition was obviously avoided .by
resorting to public notification. Under these circumstance, the committee D
had justifiably given up the procedure to serve notices individually on all
the daily-rated employees appointed by M. Public notification in the
newspapers on two different dates became unavoidable. Opportunity given
to the employees to appear before the committee and to place all the
material in support of their claim was fair procedure to prove valid apE
pointments made in their favour by M. An O!lportunity to defend the right
of valid and legal appointments made by M was given and all those who
appeared before it, their cases were duly considered. Those who were
vigilant enough, appeared and placed their cards before the committee and
they were in fact as many as 987. All others had chosen to remain absent.
In a massive action like the present one, in the backdrop of the situation, F
extension of the principles of natural justice would place premium on the
high- handed action or obstructive tendency on the part of the employees.
For 2250 posts more than 6000 appointments were made. For each post at
least three persons had been appointed. There were no letters of appointment and the so-called letters of regularisation were obviously illegal. The G
Government records were destroyed in fire. The materials in the possession
of the respective candidates were placed before the Committee and the High
Court but the same were not found acceptable. Under these circumstances,
what purpose the direction to issue notice would serve to those who did not
appear before the Committee. Therefore, the principles of natural justice
H
376
SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.
A
were not violated. All the appointments were made in flagrant breach of the
procedure and the executive instructions and amounted to blatant abuse of
the centralised power by M and subversive of discipline.
[396-G-H; 397-A-C; H; 398-A-C]
4. In given circumstances when there existed permanent posts or even
B
temporary posts for long years, an inference could be drawn as to the
existence of the need to continue such posts. But M who had centralised
power in his hands blatantly abused the power and appointed more than
three persons to each post. Direction to regularise the services of those who
approached the Court would generate impetus for others who gain illegal
and backdoor entry into the service with the connivance of appointing
C ·authority and to remain in such empfoyment for considerable period to
seek judicial process to legitimatise their illegitimate entry into the Government service. They would in turn perpetrate the same corrupt practice more
vigorously, jeopardising public service and public interests. Therefore,
Courts would be circumspect and chary to direct regularisation Qf the
D
service of casual employees in given circumstances. Each case requires to
be examined in the backdrop of its own facts. Mere their approaching the
Court and continuing the litigation would not be considered to be a factor
to legitimatise the illegal actions. [398-F; 399-E-G]
E
F
Delhi Development H01ticulture Employees Union v. Delhi Administration Delhi & Ors., [1992) 4 SCC 99 and Sardara Singh & Ors. v. State of
Punjab & Ors., [1991) 4 SCR 555, relied on.
Dhmwad Distt. f. W:D. Literate Daily Wage Employees Association &
Ors. v. State of Kamataka & Ors., [1990) 2 SCC 396; H.C. Puttaswamy v.
Chief Justice of Kamataka High Cowt, Bangalore & Ors., [1990) Supp. 2 SCR
552 and Prabodh Venna & Ors. Etc. v. State of Uttar Pradesh & Ors., Etc.,
[1985) 1 SCR 216, distinguished.
5. When this Court summoned the originals of the attendance
registers, this Court found the attendance register placed before the Court
G to be fabricated. In the absence of official record, it was difficult to rely on
the material prepared by the appellants and placed before this Court.
Under this circumstances, it was also difficult to countenance the contention that their appointments were made in accordance with the prescribed
procedure. Appointments of some of the candidates though allegedly legally
appointed were cancelled since they had not appeared before the commitH tee. Since they failed to avail of the opportunity to appear before the
,_
ASHWANIKR. v. STATEOFBIHAR
377
Committee which could have got verified and examined the matter on A
merits, they could not be given the relief of regularisation on their services.
[400-H; 401-A-D]
6. All the appointments or regularisation had been made by the
Deputy Dire~tor in flagrant breach of the instructions, respondents could . B
not be directed to regularise their services to the extent of the available
posts within the limit. However, it was directed that (1) the State shall
public a notice in all the newspapers inviting application for direct-recruitment as well as to call names from the concerned employment exchanges;
(2) if no statutory body composed of high-rank officials for recruitment to
Class III and Class IV employees is in vogue, the State is directed to
constitute a committee consisting of three members, viz., (a) a member of
the Public Service Commission; (b) a senior l.A.S. officer, i.e., the Additional or Joint Secretary of the Health Department; and (c) a senior
officer, i,e., the Director or Additional Director of Health Services, to select
c
the candidates; (3) it would be open to all the appellants or all those D
appointed by M to apply for selection. The Committee would, in their case,
as first step verify and satisfy itself of the credentials of such candidates
whether they were appointed by M and had worked at least for three years
continuously. The Committee would also satisfy itself that such candidate
or candidates honestly and meritoriously discharged their duties as Class
III and Class IV posts, at least for the said period. The Committee, if so
satisfied as mentioned in clause (iv), would allot additional marks to them
for each of the three years, 2 marks per year, upto maximum of 6 marks,
for each candidates; if any of the candidates would happen to be barred
E
by age limit, condition of age of such candidate would be relaxed appropriately so as to qualify the candidate for selection; the State GovernF
ment would arrange the sitting of the committee and within two months
from the last date prescribed for submitting the applications, preliminary
scrutiny would be completed; the Committee would select all the can-
. didates on merit following the procedure prescribed in the appropriate
circulars and follow rule of reservation as in vogue and prepare the merit
list and should submit it to the Government. In the event of selection and G
appointment of erstwhile daily-rated employee or employees, the entire
proved period during which they have worked as daily-waged employees
will be computed for purpose of pensionary and other benefits but they
would not be entitled to claim any inter se higher seniority in the selection
made by the committee or for any promotion on the basis of their previous H
378
SUPREME COURT REPORTS l1995] SUPP,5S.C.R.
A
service. [401-E-H; 402-B-F; 403-A-B]
Per Hansmia, J. (Dissenting)
1. A casual labourer is not the holder of a post. In the instant case,
the appointments of the appellants initially being not to any post, the
B
procedure mentioned in the Office .Memorandum issued on 3.12.1980 by
the Department of Personnel and Administrative Reforms of the State
Government was not required to be followed. [406-E; 407-B]
c
D
E
F
State of Assam v. Kanak Chand!'Q Dutta, [1967] 1 SCR 679, relied·on.
Union of India v. Deepchand Pandey, [1992] 4 SCC 432, distin"'-
guished.
2. The ad hoc/temporary employees have to get selected, along with
others, to get regularised. They must undergo a selection process which
has to be according to a settled procedure: In the instant case, the original
of the document not being available, it could not be held that the concerned
persons were regularised after proper selection. But, in some case Selection Committe.e did examine the candidature of concerned persons and
they had come to be regularised pursuant to the recommendation of the
selection committee. However, the procedure had not been followed in
cases of all the appellants. [411-D; 413-B-D]
2.1. A notice must be published regarding the posts, in appropriate
manner. This publication could be, in appropriate cases, ~n notice boards
f
also. The posts were required to be advertised. This, however, is an
ordinary requirement. The non- advertisement of the posts in newspapers
had, therefore, caused no infirmity to the reg~laris!ation. [413'-F-H]
State of Hmyana v. Piara Singh & Ors., [1992] 4 SCC 18, relied on.
2.2. In the instant case, there being a pressing cause here, which was
almost writ large on the face of the· record, the non-information to the
G employment exchange had, therefore, caused no dent to the appointment.
[414-8]
State of Hmyana v. Piara Singh, [1992] 4 SCC 18, relied on.
23. A perusal of the O.M. of 3.12.1980 did not show that the Selection
H Committee was required to prepare a mP-rit list. Such a merit list/panel was
..
ASHW ANI KR. v. STATE OF BIHAR
379
prepared in some cases but it was not done in all cases. There was no A
justification in finding infirmity in all the appointments because of lack of
materials on record to show that the appointments had been made without
preparation of merit list/panel. [ 415-D-E]
3. What are the requirements of the natural justice cannot be laid
down in any straight jacket. This is a well settled position in law. The facts B
and circumstances of the case in question would alone provide the answer
whether natural justice has been complied with or not. It is equally well
settled that where adverse civil consequences follow pursuant to an order
of an authority, natural justice has to be complied with ordinarily. Law,
however, permits exclusion of natural justice in some cases, like urgency.
C
[415-F-H]
Bihar School Examination Board v. Subhash Chandra Sinha, [1970)
3 SCR 963, distinguished.
In the instant case, it was not a question of some illegality of the
general nature. Here the allegation was against each appellant. Even if it
were to be that some among them had adopted unfair means, the appointments of others could not be set aside because of that. Therefore, individual notice would not be necessary. [416-D]
S.K. Balasubramanian v. State of Tamil Nadu, [1991) 2 SCC 708,
relied on.
In the instant case, material on record showed that at first attempt
was made to serve individual notices, whereupon the serving persons were
even mis-handled; so, recourse was taken to newspaper publication. This
was done in some Hindi local newspapers. It was on record that pursuant
to the notice so given good number of persons likely to be affected had
appeared before the Committee. It might be that some persons did not
appear before the screening committee, despite knowledge of the same.
[417-G-H]
D'
E
F.
The giving of opportunity to show cause in the present cases having G
been made known through newspapers, it could not be held that the
opportunity given was not adequate and reasonable. The appellants were
heard before this Court, which could be taken as a sort of post-decisional
opportunity, which could be said to have met the requirement of natural
justice. [418-E]
H
A
B
c
380
SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.
4. Mr. M. the Deputy Director had undoubtedly out stepped confines
of his powers and has betrayed the confidence reposed in him, against
about 2500 sanctioned posts, he was instrumental in giving/directing appointments to about 6000 persons. But all the persons so employed had not
aided, abetted or instigated him in doing so. No efforts were made to find
as to who had been legally and validity appointed. As there were materials
on record to show that regular appointments had also been made and as it
was not possible to know who the regularly appointed persons were, it was
held that the appellants, whose number was 1363, might be among those
who were regularly appointed. Article 21 of the Constitution does not permit taking away livelihood of so many of the incumbents unless satisfied
that they were among the persons how had not been legally and validly
appointed. As the State had not taken away the rights which had come to
inhere in the appellants, the primary burden was on the State to establish
that illegality had been committed in giving appointments to the appellants.
This burden the State had failed to discharge qua the appellants. The
benefit of the same had to be made available to them. In such matters there
D
was some justification to keep human consideration also in mind. As any
adverse order would uproot 1363 families inasmuch as virtually all the
appellants were from poorer section of the society and it might be that the
concerned Cami.fies had no other bread earner, the legal, just, fair and
reasonable order to be passed in these appeals would be to hold that all the
E
1363 appellants would be deemed to have been regularly appointed. The
termination orders qua them were set aside.
F
G
[418-G-H; 419-A; C-E; G-H; 420-A-C]
H.C. Puttaswamy v. Hon'ble the Chief Justice, Karnataka High Court,
[1990] Supp. 2 SCR 552, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10758-59
of 1995 Etc. Etc.
From the Judgment and Order dated 6.5.94 of the Patna High Court
in C.W.J.C. Nos. 5163 & 7527 of 1993.
Shanti Bhushan, P.P. Rao, Dr. Shankar Ghose, G.L. Sanghi, H.L.
Agrawal, Dr. Rajeev Dhavan and M.L. Verma, Jayant Bhushan, Ranjit
Kumar, Yatish Mohan, Rudreshwar Singh, Anil Kumar Jha, A Sharan,
K.K. Gupta, K.D. Prasad, AN. Bardiyar, P.P. Tripathi, Atishi Dipankar,
L.R. Singh, Akhilesh Kumar Pandey, S.K. Sinha, U.S. Prasad, Rajeev
II~. ,~umar Singh, Imtiaz Khan, E.C. Vidya Sagar, Ejaz Maqbool, I.N. !ha,.V.S.
ASHWANI KR. v. STATE OF BIHAR [K RAMASWAMY, J.]
381
Pandey, A.K. Jha, D.K. Thakur, Gopal Singh, Pramod Kumar, Braj K. A
Mishra, B.B. Singh, Kumar Rajesh Singh and Vivek Sood for the appearing
parties.
The following Judgment/Order of the Court were delivered :
K. RAMASWAMY, J. Leave granted.
This bunch of appeals pertains to 1363 employees, viz., Clerks (Class
III) and Attendants (Class IV), All the cases arise from judgments of
Division Bench of the Patna High Court dated May 6, 1994 in C.W.J.C.
B
c
No. 5163/93 and batch. The principal villain behind the scene is one Dr.
A.A. Mallick, Deputy Director, Health Department of the Government of
Bihar, in charge of Tuberculosis. He was Director of the Tuberculosis
Centre at Patna. Eradication of Tuberculosis was taken up as a part of 20point programme in Planned Expenditure. The activities in the Tuberculosis Centre at Patna were extended to various districts. Since Mallick D
happened to be the Director of the Centre, he was made Deputy Director
of the Scheme. The Government had also issued directions to the District
Medical Officers to abide by the instructions of Mallick in implementation
of the programme. He was made the Chairman of the Selection Committee constituted by the Government consisting of himself, Assistant Director
or Pilaria and the senior officer represent scheduled Castes/Scheduled
Tribes to recruit 2250 posts of Class III and Class IV employees created
to implement the Scheme in addition to around 800 to 900 staff in Patna
Centre in all categories. Taking advantage thereof, the undisputed fact is
E
F
that, he had appointed around 6000 (as found by the Committee) while the
Government asserts them to be approximately 7000. Be that as it may, not
less than 6000 persons were appointed by Mallick without any written
orders. He directed many of them to be adjusted by transfer by District
Medical Officers and some of them had produced fabricated appointment
orders. He shuffled their payment of salaries like musical chairs by turns.
Another device adopted in the sordid episode was to make the employees
go on strike and when some sensitive M.L.As. raised the question, on the G
floor of the State Legislative Assembly, of illegal appointments made by
Mallick, the Government initially swallowed the appointments to be legal
and had justified his action to be valid. Later, when facts themselves proved
their faulty admission, they made amends before the Assembly and the
Government made an elaborate statement apprising the House that the H
382
SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.
A
information furnished earlier was not correct.
B
c
Due to the agitation, the Director and Joint Secretary to the Government, Health Department had issued directions to regularise the services
of daily-rated Class III and Class IV employees. Taking aid thereof, it is
claimed that regularisation of many of them including most of the appellants, was made .. When alarming bells rang around portals of Patna High
Court, filing petition under Article 226 of the Constitution seeking payment
of salaries, the High Court, though initially in some cases directed to
enquire into the cases and to pay salaries, later found it difficult to cope
up with the situation. So it directed the Government to constitute an
enquiry committee to find out whether the appointments made by Mallick
were valid and if so, to pay salary to such employees.
In the meanwhile, the Government also directed the Vigilance
Department to enquire into the matter and on May 7, 1991, the Vigilance
D Department in its report pointed out that Mallick had violated the rules of
recruitment and in collusion with other officers had appointed daily-rated
Class III and Class IV employees. Pursuant to the direction of the High
Court, a Screening Committee was constituted which sought to serve notice
on the employees. When the Deputy. Director went to the Centre at Patna
to serve the notice on the employees, he was man-handled resulting in an
E
ugly law and order situation.