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

- **Citation:** [1996] Supp. 10 S.C.R. 120
- **Court:** Supreme Court of India
- **Decided:** 1996-12-16
- **Case number:** Civil Appeal Nos. 10758-59 of 1995
- **Bench:** Am. Ahmadi, S.B. Majmudar, Sujata V. Manohar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashwani-kumar-and-ors-etc-v-state-of-bihar-and-ors-14183
- **Pages:** 36

## Headnote

Service Law-Recrnitment-Planned Expenditure-Budgetary sanction
c
is a sine qua non-Appointments dehors budgetary sanction and on non-existing vacancy-Held, unauthorised and illegaf-Tuberculosis Eradication
Scheme-Appointment of 6000 em]Myees against sanctioned posts of
225D-Breach of procedure of recrnitment-All appointments held unauthorised and illegal-Claim of regularisatiort-Held, unsustainable.
D
Tennination of Services-Natural Justice-Principles of-Compliance
with.
Eradication of Tuberculosis was taken up as a part of 20 Point
Programme in planned ~enditure; The then D.eputy Director, Health
E
Department of the Government of Bihar, in-charge of Tuberculosis for a
number of years, was made the Deputy Director of the Scheme and the
Chairman of Selection Committee constituted by the Government, to
recruit 2250 Class III and Class IV employees on posts created to implement the Scheme. About 6000 persons were appointed by the Chairman
without any written orders. He directed many of them to be adjusted by
F transfer by District Medical Officers and shuffled their payment of
salaries by turns. Regularisation of many of such persons including most
of the appellants was made. When petitions under Article 226 of the
Constitution seeking payment of salaries were made, an Enquiry Committee was constituted to find out whether the appointments made were valid
G
and whether salaries could be paid . to such employees. The Vigilance
Department appointed to enquire into the matter reported that the Chairman had violated the rules of recruitment. Pursuant to the direction of the
/'"
~ .
High Court, a Screening Committee was constituted which found that the
initial appointments made were in violation of the instructions issued by
the Government and that the Chairman, appointing authority circumH vented the rules by making a,djustment by transfer without verifying the
120
l'
ASHWANIKR. v. STAIB
121
qualifications, eligibility or disclosing previous places whereat the can- . A
didates appointed had worked etc. etc. Relying on the report, all the
appointments were cancelled. When their legality was questioned in the
Writ Petitions, the High Court upheld the Government action. Hence these
appeals by special leave.
This group of appeals was heard by the Division Bench of this Court.
There arose a difference of opinion between the two Judges. K. Ramaswamy, J. confirming the order of the High Court held that even though it
was open to the Government to create posts or to fill up the posts
independently ofexistence of any law or statutory rules, the said exercise
B
had to be consistent with the rights guaranteed under Articles 14 and 16(1) C
of the Constitution of India; that when planned expenditure is i:equired to
be spent, budgetary sanction is mandatory and in the present case when
some of the employees were sent for one month's training, posts were
created and budgetory sanction was obtained thereby abusing the absolute
power, the Chairman afpointed 6000 persons at his whim and wagery; that D
procedure for appointment to Class III and Class IV posts was given a go
by and instead casual appointments were made without any letter of
appointment to fill up even non-existing vacancies; that existence of post
or vacancy was a sine qua non for making appointments to such existing
posts or vacancies available, the recruitment made to these posts was
patently illegal and without authority of law; that when initial appointE
ments were in violation or in negation of the rules or when there were no
orders for appointment, to confer permanency of appointment to sucll
posts by regularisation in violation of the executive instructions or rules
was itself subversive of the procedure and, therefore it was futile to issue
writs as prayed for.
F
Hansaria, J. quashed the termination orders qua the appellants,
holding that for the purpose of recruiting Class III and Class IV employees
in the 20 Point Programme the procedure prescribed by the Office
Memorandum dat

## Text

_Characters 0–39,717 of 92,628. This is a partial read: ask again with offset=39717 for what follows._

A
ASHWANI KUMAR AND ORS. ETC.
·•
v.
STATE OF BIHAR AND ORS.
DECEMBER 16, 1996
B
[AM. AHMADI, CJ., S.B. MAJMUDAR AND
SUJATA V. MANOHAR, JJ.]
Service Law-Recrnitment-Planned Expenditure-Budgetary sanction
c
is a sine qua non-Appointments dehors budgetary sanction and on non-existing vacancy-Held, unauthorised and illegaf-Tuberculosis Eradication
Scheme-Appointment of 6000 em]Myees against sanctioned posts of
225D-Breach of procedure of recrnitment-All appointments held unauthorised and illegal-Claim of regularisatiort-Held, unsustainable.
D
Tennination of Services-Natural Justice-Principles of-Compliance
with.
Eradication of Tuberculosis was taken up as a part of 20 Point
Programme in planned ~enditure; The then D.eputy Director, Health
E
Department of the Government of Bihar, in-charge of Tuberculosis for a
number of years, was made the Deputy Director of the Scheme and the
Chairman of Selection Committee constituted by the Government, to
recruit 2250 Class III and Class IV employees on posts created to implement the Scheme. About 6000 persons were appointed by the Chairman
without any written orders. He directed many of them to be adjusted by
F transfer by District Medical Officers and shuffled their payment of
salaries by turns. Regularisation of many of such persons including most
of the appellants was made. When petitions under Article 226 of the
Constitution seeking payment of salaries were made, an Enquiry Committee was constituted to find out whether the appointments made were valid
G
and whether salaries could be paid . to such employees. The Vigilance
Department appointed to enquire into the matter reported that the Chairman had violated the rules of recruitment. Pursuant to the direction of the
/'"
~ .
High Court, a Screening Committee was constituted which found that the
initial appointments made were in violation of the instructions issued by
the Government and that the Chairman, appointing authority circumH vented the rules by making a,djustment by transfer without verifying the
120
l'
ASHWANIKR. v. STAIB
121
qualifications, eligibility or disclosing previous places whereat the can- . A
didates appointed had worked etc. etc. Relying on the report, all the
appointments were cancelled. When their legality was questioned in the
Writ Petitions, the High Court upheld the Government action. Hence these
appeals by special leave.
This group of appeals was heard by the Division Bench of this Court.
There arose a difference of opinion between the two Judges. K. Ramaswamy, J. confirming the order of the High Court held that even though it
was open to the Government to create posts or to fill up the posts
independently ofexistence of any law or statutory rules, the said exercise
B
had to be consistent with the rights guaranteed under Articles 14 and 16(1) C
of the Constitution of India; that when planned expenditure is i:equired to
be spent, budgetary sanction is mandatory and in the present case when
some of the employees were sent for one month's training, posts were
created and budgetory sanction was obtained thereby abusing the absolute
power, the Chairman afpointed 6000 persons at his whim and wagery; that D
procedure for appointment to Class III and Class IV posts was given a go
by and instead casual appointments were made without any letter of
appointment to fill up even non-existing vacancies; that existence of post
or vacancy was a sine qua non for making appointments to such existing
posts or vacancies available, the recruitment made to these posts was
patently illegal and without authority of law; that when initial appointE
ments were in violation or in negation of the rules or when there were no
orders for appointment, to confer permanency of appointment to sucll
posts by regularisation in violation of the executive instructions or rules
was itself subversive of the procedure and, therefore it was futile to issue
writs as prayed for.
F
Hansaria, J. quashed the termination orders qua the appellants,
holding that for the purpose of recruiting Class III and Class IV employees
in the 20 Point Programme the procedure prescribed by the Office
Memorandum dated 3.2.1980 was.not required to be followed and that even
though the Chairman was not justified in giving· direct appointment to G
about 6000 persons when there were oniy 2500 sanctioned posts, all° the
persons so employed had not abetted, aided or instigated the Chairman in
.. doing so, and, therefore, even though a wrong doer or a sinner has to be
punished and also those who aid, abet or instigate them but not those
regarding whom only a doubt existed and that about 2500 persons.could H
122
SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A have been appointed by the Chairman and as there was material 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, the appellants,
whose number was 1363, might be among those who were regularly appointed and as it was doubtful whether these 1363 appellants could be said
B to have been irregularly appointed, termination orders qua them were
required to be set aside.
On account of this difference of opinion between the two judges,
these appeals had been placed before the larger bench.
C
The appellants submitted that the Deputy Director, Health Department of the Government of Bihar having been made the Chairman of
Selection Committee was duly empowered to appoint Class III and Class
IV employees on the programme and looking to the urgency of the
programme the appointments had to be made on a war footing and that
D was how 6000 appointments were made by him in due exercise of his
authority and these posts not being born on any regular cadre in the State
service, the detailed method of recruitment for filling up vacancies for such
a programme was not required to be followed; that these appointments on
ad-hoc basis were ultimately duly approved by the State when the Committee constituted for the purpose had found them to be valid and accordingly
E the employees were regularised and thereafter it was not open to the State
to nullify these appointments and all the 6000 appointments could not have
been invalidated in a wholesale manner which was contrary to the basic
principles of natural justice; that for no fault of theirs these employees
who had continued for more then 10 years service in many cases and who
F were even subsequently promoted could not have been removed and hence
on the principle of fairness, equity and even invoking mercy jurisdiction
of the Court they should have been continued in service.
The respondent State submitted that all the initial appointments, on
ad hoc or daily rated basis made by the Chairman, Selection Committee
G were patently unauthorised and illegal, being more than the sanctioned
posts and made in violation of the established procedure for recruitment;
that the appointments were not backed up by financial budgets, they were
totally unauthorised and could not have been countenanced at all and,
therefore, their Regularisation was wholly arbitrary, null and void and of
H no legal effect and as there was no material to show who could be fitted in
ASHWANIKR. v. STATE
123
against the sanctioned posts the State was justified to set aside all these A
appointments; that there was no violation of principles of natural justice
as public notices were given inviting such employees to put forward their
cases and there was no question of tempering justice with mercy as all
these incumbents were illegally appointed.
The points raised for determination were (i) Whether the appointments of the Class III and Class IV employees on the Tuberculosis
Eradication Scheme as a part of 20-Point Programme were legal and valid;
B
(ii) Whether the confirmation of these employees was legally justified; (iii)
Whether principles of. natural justice were violated while terminating
services of all these 6000 employees appointed (iv) What relief, if any, could C
be granted to the appellants.
Disposing of the appeals, this Court
!
HELD : 1.1. Eradication of tuberculosis was taken up as a part of D
20-Point Programme under the Planned Expenditure. Director, Tuber·
culosis Centre at Patna was made Chairman of the Selection Committee,
entrusted with the task of recruiting 2250 Class III and Class IV
employees. The budgeted expenditure for recruitment of. 2250 employees
on these sanctioned posts was a planned expenditure. The committee
appointed approximately ~000 persons on the sanctioned 2250 posts. E
Under these circumstances their initial entry must be held to be totally
unauthorised, incompentent and void. When these recruitments were not
supported by any budgetary grants there will be no occasion to make
available finances to meet-their salary expenses. These 6000 employees
were recruited completely vi'plating the established norms and procedures F
of recruiting Class III and Class IV employees as laid down by the State
Government from time to time. All these recruitments made were ar·
bitrary, capricious and were null and void. Such recruitment in Public
Services could not have been effected in such a cavaliar fashion. Even if
the recruitment was in a Government Scheme under 20-Point Programme G
it was to be carried out as per planned expenditure. When planned
expenditure is required to be incurred, budgetary sanction is a sine qua
non. The Government Orders concerning recruitment to Class III and IV
employees were not followed while recruiting ad hoc/daily wage employees
at the b1itial stage. The Govt. Resolution of 253.1983 stating that in
supersession of all the previous orders, the State Government had decided H
124
SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
A to constitute Selection Committee under the T.B. Programme, had to be
read along with the Government Orders dated 3.12.1980 and not dehors
them. The supersession of the previous orders as contemplated by the
Resolution was only to the limited extent that the Selection Committee
mentioned in the Resolution will be the Committee for appointing such
B persons on the concerned programmes and to that extent the recruiting
authority as mentioned in the l!arlier Government Orders would stand
superseded but it did nothing more than that. The procedure for recruit·
ment, however, would remain the same even for the newly constit_uted
Selection Committee. It is axiomatic that unless there is vacancy there is
no question of filling it up. There cannot be an employee without a vacancy
C or post available on which he can work and can be paid as per the
budgetary sanctions. In the instant case, the State authorities were jus·
tified in refusing to release salaries for paying this unauthorised army of
staff. They were all persoa non grata and were not employees in the real
sense of the term. The appointments of 6000 employees as made in the
D Tuberculosis Eradication Scheme were ex facie illegal. As they were con·
trary to all recognised recruitment procedures and were highly ai:bitrary,
they were not binding on the State. [139-B-H; 140-A-C; 141-H; 142-B; E-H]
1.2. Question of confirmation or regularisation of an irregularly ap·
pointed candidate would arise ifthe concerned candidate is appointed in an
E irregular manner or on ad hoc basis against an available vacancy which is
already sanctioned. But if the initial entry itself is unauthrised and is not
against any sanctioned vacancy question of regularising the incumbent on
such a non-existing vacancy would never survive for ~onsideration and even
if such purported regularisation or confirmation is given it would be an
p
exercise in futility. 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. 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
G vacancy. Question of regularisation in any service including any Govern·
ment 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
the time to time and if it is found that the concerned incumbents have
H continued to be employed for a long period of time with or without any
ASHWANIKR. v. STATE
125
artificial breaks, and their services are otherwise required by the institutio~ A
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 concerned employees can give their
best by being assured security of tenure. But this would. require a pre-condition that the inital entry of such an employee must be made against an B
available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of
regularisation may arise would be when the inital 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 C
recruitment. A need may then arise in the light of the exigency of administrative required 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 D
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 fa rw vacancy on which E
such an initial entry of the candidate could ever be effed£d. Suell 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 by. The appellants fell in this latter class of cases. They had no case for regularisation F
and whatever purported regularisation was effected in their favour
remained an exercise in futility. Even though some training was given under
the direttion of the Government to certain candidates the recruitment
made being in excess of the available vacancies would still remain unauthorised and illegal. Even after training 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. [143-B-D; 144-B-H; 145-A-B; 147-C-D]
G
1.3. Principals of natural justice cannot be subjected to any straight
jacket formula. They will vary from. case to case, from circumstance to H
126
SUPREME COURT REPORTS[l996) SUPP. 10 S.C.R.
A circumstance and from situation to situation. The basic principles of
natural justice cannot be said to have been violated by the Committee
which ultimately took decision on the basis of the personal hearing given
to the concerned employees and after considering what they had to say
regarding their appointments. Whatever was submitted by the concerned
B employees was taken into consideration and then the committee came to a
firm decision to the effect that all these appointments made were vitiated
from the inception and were required to be set aside and that was how the
impugned termination orders were passed against the appellants. On the
facts of these cases, therefore, it could not be said that principles of natural
justice were violated or full opportunity was not given to the concerned
C employees to have their say in the matter before their appointments were
recalled and terminated. (148-E; 150-F-H; 151-A]
1.4. When 6000 appointees were found to have been illegally loaded
on the State exchequer and when there were only 2250 sanctioned posts, in
D the absence of clear data as to who were the senior most and which were
the sanctioned posts available at the relevant time aga~nst which they could
be fitted it would be impossible to undertake even a jettisoning operation
to offioad the removable load of excess employees amounting to 3750 by
resorting to any judicial surgery. Once the source of their recruitment was
found to be tainted all of them had to go. (151-C-D]
E
1.5. These 6000 employees were got employed over at least a decade.
Many of them served for number of years and got confirmed. Forno fault of
theirs they found themselves stranded in life midstream. Many might have
got overaged. Many of them also got trained under the second phase of the
F
Programme. Under these circumstances justice would require that some
effort to salvage their situation if possible may be made when the State
under-takes a fresh exercise to fill up the sanctioned posts under the
Tuberculosis Eradication Programme which had come to stay. Tuberculosis is still not eradicated in the State of Bihar and the Programme is to
last for couple of more years and may be it may assume a semi-permanent
G status. There are 2250 sanctioned posts or it may be that some more
sanctioned posts may see the light of the day in the near future. 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 governing the same, give an opportunity to these 6000 unfortunate
H creatures to compete for the said posts in the future recruitment that may
ASHWANIKR v. STAIB[S.B.MAJMUDAR,J.]
U7
be undertaken by the State and in the process because of the experience A
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 31.7.1987, due weightage also be given to them
while considering their eligibility for being recruited in service as and when
such future exercise is undertaken. If no statutory body composed of highB
ranked 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
IAS 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 the candidates. The Additional or Joint Secretary of · C
Health Department shall be the Chairman of the Committee. The respon·
dent-State will constitute such a committee preferably within three months
of receipt of this order. It would be open to all the appellants or those
appointed under the Scheme who might not have challenged their termination orders before any competent court uptil now, to apply for selection to D
the concerned _Class III and Class IV posts. The committee would in their
cases as first step, verify and satisfy itself of the credentials of such candidates. The committee may fix total number of marks to be obtained by the
candidates for being tre1,tted to have passed the selection test. The committee if satisfied about the credentials and other particulars of the appellants
or those appointed under the Scheme may allot additional marks to them
for each of the three years and more for which they might have worked, at
the rate of 2 marks for each completed year of continuous working, upto a
maximum of 6 marks, for each candidate. Candidates appointed who are
found to have undertaken training pursuant to the 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. If the concerned candidates who were earlier appointed are
found by the committee to be otherwise eligible for being appointed to Class
E
F
III and IV posts as per the relevant rules and regulations and if on the basis G
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 can·
didates should be relaxed appropriately so as to entitle such candidates to
be considered for selection. The committee shall select all candidates on
· merits following the prescribed procedure in the appropriate circulars and H
128
SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A rules and shall also follow the rules of reservation as in vogue and prepare
the merit list and should submit it to the Government. In the event of
selection and appointment of erstwhile daily-rated employee or employees,
who were inducted under the scheme the entire proved period during which
they had worked as daily wager and/or confirmed employees will be com·
B puted for the purpose of pensionary and other retiral benefits but they will
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 service.
[152-C·H; 153-A; E-H; 154-B·G; 155-C·D]
H.C. Puttaswamy & Ors. v. The Hon'ble Chief Justice of Kamataka
C High Court, Bangalore & Ors., JT (1990) 4 SC 474 and Jacob M.
Puthuparambil & Ors. Etc. Etc., [1991] 1 SCC 28, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10758-59
of 1995 Etc.
D
From the Judgment and Order dated 6.5.94 of the Patna High Court
in C.W.J.C. No. 5163 and 7527 of 1993.
Dr. Rajeev Dhavan, Gopal Singh, A. Sharan, Imtiaz Ahmed, E.C.
Vidyasagar, K.D. Prasad, A.N. Bardiyar, LN. Jha, A.K. Jha, Jayant
Bhushan, S.K. Sinha, P.P. Tripathi, Ejaz Maqbool, K.K. Gupta, A.K.
E Pandey, R.K. Singh, Ranjit Kumar, lrshad Ahmad, R.P. Singh, (Sumant
Bhardwaj) for Ms. Mridula Ray Bhardwaj, U.S. Prasad, B.B. Singh and
A.P. Medh for the appearing parties.
F
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. : Leave granted in S.L.P. (C) Nos. 6174of1992,
14275' of 1994, 7410 of 1995 and S.L.P. (C) No. 24553 (CC 4638/95).
This group of appeals, on grant of special leave to appeal against the
common judgment of Patna High Court in CWJC No. 5163 of 1993 and
G batch decided on 6th May 1994, has been placed before this larger Bench
by the orders of Hon'ble the. Chief Justice on account of difference of
opinion between two learned judges of this Court, K. Ramaswamy, J. and
Hansaria, J., constituting the Division Bench which earlier heard this group
of matters. Before the main points for difference are highlighted and the
contentions of respective contesting parties are noted, it would be necesH sary to note at the outset the backdrop facts leading to these proceedings.
ASHWANIKR. v. STATE(S.B.MAJMUDAR,J.]
129
Backdrop Facts
A
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 Centre at Patna. Eradication B
of Tuberculosis was taken up as a part of 20-Point Programme in planned
expenditure. The activities in the Tuberculosis Centre at Patna were extended to various districts. Since Dr. Mallick happened to be the Director
of the Centre, 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 C
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 Centre in all D
categories. Taking advantage thereof, the undisputed fact is that, he 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
person~ were appointed by Dr. 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. E
He shuffled their payment of salaries by turns. Another device adopted in
the macabre episode was to make the employees go on strike and when
some sensitive M.L.As. raised the question, on the floor of the State
Legislative Assembly, of illegal appointments made by Dr. Mallick, the
Government initially posed the appointments to be legal and justified his p
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 information furnished
earlier was not correct.
Due to the agitation, the Director and Joint Section to the Govern- G
ment, Health Department had issued directions to regularise the services
' of daily-rate 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 by filing petitions under Article 226 of the Constitution seeking H
130
SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A payment of salaries, the High Court, though initially in some cases directed
to enquire into the cases and to pay salaries, later found if difficult to cope
up with the situation. So an Enquiry Committee was constituted to find out
whether the appointments made by Dr. Mallick were valid and whether
salaries could be paid to such employees.
B
In the meanwhile, the -Government also directed the Vigilance
Department to enquire into the matter and on 7th May 1991, the Vigilance
Department in its report pointed out that Dr. Mallick had violated the rules
of recruitment and in collusion with other officers had appointed dailyrated Class III and Class IV employees. Pursuant to the direction of the
C 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 ugly law and order situation. In consequence, notices were published
on two different dates in different newspapers inviting submission of the
D 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
E 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
F 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 their appointment and by transferring them to the respective places by cyclostyled
G orders. He directed the District Medical Officers to verify the credentials
and then to appoint them temporarily. The Committee also noted that the
third category was of persons who were appointed by producing fabricated
orders of appointment. Consequently, it directed to cancel all the appointments made by Dr. Mallick. On receipt of the report and on its consideraH tion, the Government found them to be invalid and illegal and all the
-
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.)
131
--"!
appointments were cancelled. When their legality was questioned in the A
writ petitions filed under Article 226, the High Court upheld the Government action. Thus these appeals by special leave.
When this group of appeals was finally heard by the Division Bench
of this Court consisting of K. Ramaswamy, J. and Hansaria, J., as noted B
earlier,. on hearing the arguments of learned counsel appearing for the
contesting parties, there arose a difference of opinion between the two
learned judges, K. Ramaswamy, J., came to the following conclusions :
1. Even though it was open to the Government to create posts or to
fill up the posts independently of existence of any law or statutory rules c
made under the proviso to Article 309 of the Constitution to that effect,
the said exercise had to be consistent with the rights guaranteed under
Articles 14 and 16(1) of the Constitution of India.
2. When planned expenditure is required to be spent, budgetary
sanction is mandatory. In the present cases when some of the employees D
were sent for one month's training posts were created and budgetary
sanction was obtained. The cases at hand were unique and the device
adopted by Dr. Mallick was in flagrant violation of the norms of administrative procedure known to law. He had given decent· burial to procedure
prescribed by the Government. Abusing the absolute power secured in his E
hands, he appointed 6000 persons at his whim and wagery.
--
3. Procedure for appointment to Class III and Class IV posts was
given· a go-by. Instead causal appointments were made without any letters
of appointment to fill up even non-existing vacancies.
F
4. Existence of post or vacancy was a sine qua non foi making
appointments to such existing posts or vacancies and as there were no 6000
posts or vacancies available, the recruitment made by Dr. Mallick to these
posts was patently illegal and without authority of law.
5. When initial appointments were in violation or in negation of the G
~
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.
H
132
SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A
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
B principles.
c
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 Eradcation Programme, providing certain safeguards for
considering the feasibility of recruiting the present appellants on these
D posts.
In view of the aforesaid findings and conclusions K. Ramaswamy, J. was
inclined to dispose of the appeals by confirming, subject to the aforesaid
directions, the order of the High Court dismissing the writ petitions.
E
On the other hand Hansaria, J., reached the following conclusions
F
and findings :
1. For the purpose of recruiting Class III and Class IV employees in
the 20-Point Programme the procedure prescribed by Office Memorandum
dated 3rd December 1980 was not required to be followed.
2. It could not be said that the procedure visualised by Office
Memorandum dated 3rd December 1980 was not followed at all regularising the appellants.
G
3. Non-advertisement of posts in newspapers did not cause any
infirmity to the regularisation.
4. Non-information to the Employment Exchange had caused no dent
to the appointments.
H
5. The question of illegality in appointment of general candidates on
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.]
133
the ground of non-reservation did not arise as the material showed that A
;
there was reservation of SC/ST candidates.
6. Material on record showed that in some cases regularisation was
in a pursuance of the recommendations of a properly constituted Selection
Committee.
B
7. Merit list/panel was prepared in some cases pursuant to O.M. of
3rd December 1980. But it could not be said that it was done in all cases.
However, there was no justification in finding infirmity in all the appointments because of lack of material on record.
c
8. Principles of natural justice were not fully complied with before
terminating the services of the appellants. However, that had no nullifying
effect so far as the present proceedings are concerned as they were heard
by this Court and consequently on that ground termination orders could
not be set aside.
D
9. Even though Dr. Mallick was not justified in giving direct appointment to about 6000 persons when there were only 2500 sanctioned posts,
all the persons so employed had not abetted, aided or instigated Dr.
Mallick in doing so, and, therefore, 'even though a wrong doer or a sinner
has to be punished and also those who aid, abet or instigate them but not E
those regarding whom only a doubt existed.
10. About 2500 persons could have been appointed by Dr. Mallick
and as there was material on record to show that regular appointments had
also been made (how many, we do not not know) and as it is not possible F
to know who the regularly appointed persons were the appellants, whose
number is 1363, may be among those who were regularly appointed.
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 G
1363 appellants could be said to have been irregularly appointed, termina-
~~
tion 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 H
134
SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
A Division Bench, that has triggered off the present proceedings before this
larger Bench.
Rival Contentions
B
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 in the
Planned Expenditure by the State of Bihar. It was further contended that
C the Government Order of 3rd December 1980 did not apply to such
appointments. That looking to the urgency of the Programme the appointments had to be made on a war-footing and that is how 6000 appointments
were made by Dr. Mallick in due exercise of his authority so that Tuberculosis Eradication Programme could be put on an effective and strong
D footing. It was further submitted that these were not posts born on any
regular cadre in State Service and consequently the detailed method of
recruitment for filling up vacancies for such a Programme was not required
to be followed, It was next contended that Dr. Mallick had given due
importance to the policy of reservation as applied by the State while
E effecting these appointments. That in any case these appointments on adhoc basis were ultimately duly approved by the State when the Committee
constituted for the purpose had found them to be valid and accordingly
the employees were regularised. That thereafter it was not open to the
State of Bihar to nullify these appointments by one stroke of pen. Even
that apart all the appointments effected by Dr. Mallick which were about
F
6000, could not have been invalidated in a wholesale manner which was
contrary to the basic principles of the natural justice. That the so-called
hearing given by the Committee even prior to its constitution could not be
said to be a hearing at all and hence termination orders were null and void.
It was ultimately submitted that for no fault of theirs these employees who
G had continued for more then 10 years in service in many cases and who
were even subsequently promoted could not have been removed wholesale
and hence on the principle of fairness equity and even invoking mercy
jurisdiction of the Court they should have been continued in service. That,
if at all, they were victims at the hands of Dr. Mallick but could not be said
H to be abettors and should have been dealt with in a humanitariam manner.
.. -
ASHWANIKR. v. STATE(S.B.MAJMUDAR,J.]
135
It was contended that on the same lines on which this Court in the case of A
H.C. Puttaswarny & Ors. v. The Hon'ble Chief Justice of Karnataka High
Court, Bangalore & Ors., JT (1990) 4 SC 474 permitted the irregularly
appointed employees to continue on service without a break, the present
appellants also should be directed to j2e so continued in service after giving
them reinstatement with all consequential benefits. Dr. Dhavan, learned B
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.
14275of1994 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 ap- C
pointed 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.
10811-28of1995 were concerned Dr. Dhavan submitted that appointments D
made by Dr. Mallick were in two phases, the first phase was refl.ected 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 E
candidates became entitled to be appointed on tegular basis in this
Programme and as they had been so trained there was nothing wrong in
continuing them in service. Dr. Dhavan also submitted that the Tuberculosis Eradication Scheme under 20-Point Programme was entirely a
separate Scheme undertaken by the State of Bihar in collaboration with the F
. Central Government wherein the expenses for the infrastructure were to
be shared by the State Government as well as Central Government and
there was no question of any posts being created in the regular service of
_the State.