# STATE OF BIHAR v. UPENDRA NARAYAN SINGH & OTHERS

- **Citation:** [2009] 4 S.C.R. 866
- **Court:** Supreme Court of India
- **Decided:** 2009-03-20
- **Case number:** Civil Appeal No.17 41 of 2009
- **Bench:** Markandey Kat Ju, G.S. Singhvi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-v-upendra-narayan-singh-others-25766
- **Pages:** 59

## Headnote

Service Law:
Employment Exchanges (Compulsory Notification of
~
c Vacancies) Act. 1959:
Large no. of appointments made on adhoc basis without
complying with the relevant rules and procedure - Government
passing termination orders -
High Court quashing the
termination orders and directing reinstatement with
D consequential benefits -
On appeal, Held: The initial
appointments were made in gross violation of the doctrine of
equality enshrined in Articles 14 and 16 of the Constitution
and the provisions of the 1959 Act- Orders of the Single Judge
and Division Bench of the High Court set aside - Constitution
E
of India, Articles 14, 16.
This appeal by the State relates to large no. of adhoc
appointments without complying with relevant rules and
procedure and the High Court directing reinstatement of
F
such employees with consequential benefits.
Allowing the appeal, the Court
HELD: 1. The equality clause enshrined in Article 16
mandates that every appointment to public posts or office
should be made by open advertisement so as to enable
G all eligible persons to compete for selection on merit.
•
Although, the Courts have carved out some exceptions
to this rule, for example, compassionate appointment of
the dependent of deceased employees, for the purpose
H
866
..
STATE OF BIHAR V.
867
UPENDRA NARAYAN SINGH & OTHERS
of this case it is not necessary to elaborate that aspect. A
[Para 13) [883-G-H; 884-A]
E.P Royappa v. State of Tamil Nadu and others (1974) 4
SCC 3; Umesh Kumar Nagpal v. State of Haryana and others
(1994) 4 SCC 138; Union Public Service Commission v Girish
Jayanti Lal Vaghela (2006) 2 SCC 482; State of Manipur and B
others v Y Token Singh and others (2007) 5 SCC 65 and
Commissioner, Municipal Corporation, Hyderabad and others
v P Mary Manoranjani and another (2008) 2 sec 758 - relied
on.
2.1 For ensuring that equality of opportunity in
matters relating to employment becomes a reality for all,
Parliament enacted the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959. Section
c
4 of that Act casts a duty on the employer in every 0
establishment in public sector in the State or a part thereof
to notify every vacancy to the employment exchange
before filling up the same. [Para 15) [885-B]
2.2 In terms of Section 4 of the 1959 Act, every public
employer is duty bound to notify the vacancies to the E
concerned employment exchange so as to enable it to
sponsor the names of eligible candidates and also
advertise the same in the newspapers having wider
circulation, employment news bulletins, get announcement made on radio and television and consider all eligible F
candidates whose names may be forwarded by the
concerned employment exchange and/or who may apply
pursuant to the advertisement published in the newspapers or announcements made on radio/television.[Para
16] [887 -G-H; 888-A-B]
Excise Superintendent, Malkapatnam, Krishna District,
A.P v. K.8.N. Visweshwara Rao and others (1996) 6 SCC 216
and Arun Kumar Nayak v Union of India and others (2006) 8
sec 111 - relied on.
G
H
868
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
Union of India and others v N Hargopal and others ( 1987)
B
c
3 sec 308 - referred to.
3. The hope and expectation of the framers of the
Constitution that after independence every citizen will get
equal opportunity in the matter of employment or
appointment to any office under the State and members
of civil services would remain committed to the
Constitution and honestly serve the people of this country
have been belied by what has actually happened in last
four decades. The Public Service Commissions which
have been given the status of Constitutional Authorities
and which are supposed to be totally independent and
impartial while discharging their function in terms of
Article 320 have become victims of spoil system. In the
beginning, people with the distinction in different fields
D of administration and social life were appointed as
Chairman and members of the Public Service
Commissions bu

## Text

_Characters 0–39,980 of 116,669. This is a partial read: ask again with offset=39980 for what follows._

[2009] 4 S. C. R 866
A
STATE OF BIHAR
v
UPENDRA NARAYAN SINGH & OTHERS
Civil Appeal No.17 41 of 2009
B
MARCH 20, 2009
(MARKANDEY KAT JU AND G.S. SINGHVI, JJ.)
Service Law:
Employment Exchanges (Compulsory Notification of
~
c Vacancies) Act. 1959:
Large no. of appointments made on adhoc basis without
complying with the relevant rules and procedure - Government
passing termination orders -
High Court quashing the
termination orders and directing reinstatement with
D consequential benefits -
On appeal, Held: The initial
appointments were made in gross violation of the doctrine of
equality enshrined in Articles 14 and 16 of the Constitution
and the provisions of the 1959 Act- Orders of the Single Judge
and Division Bench of the High Court set aside - Constitution
E
of India, Articles 14, 16.
This appeal by the State relates to large no. of adhoc
appointments without complying with relevant rules and
procedure and the High Court directing reinstatement of
F
such employees with consequential benefits.
Allowing the appeal, the Court
HELD: 1. The equality clause enshrined in Article 16
mandates that every appointment to public posts or office
should be made by open advertisement so as to enable
G all eligible persons to compete for selection on merit.
•
Although, the Courts have carved out some exceptions
to this rule, for example, compassionate appointment of
the dependent of deceased employees, for the purpose
H
866
..
STATE OF BIHAR V.
867
UPENDRA NARAYAN SINGH & OTHERS
of this case it is not necessary to elaborate that aspect. A
[Para 13) [883-G-H; 884-A]
E.P Royappa v. State of Tamil Nadu and others (1974) 4
SCC 3; Umesh Kumar Nagpal v. State of Haryana and others
(1994) 4 SCC 138; Union Public Service Commission v Girish
Jayanti Lal Vaghela (2006) 2 SCC 482; State of Manipur and B
others v Y Token Singh and others (2007) 5 SCC 65 and
Commissioner, Municipal Corporation, Hyderabad and others
v P Mary Manoranjani and another (2008) 2 sec 758 - relied
on.
2.1 For ensuring that equality of opportunity in
matters relating to employment becomes a reality for all,
Parliament enacted the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959. Section
c
4 of that Act casts a duty on the employer in every 0
establishment in public sector in the State or a part thereof
to notify every vacancy to the employment exchange
before filling up the same. [Para 15) [885-B]
2.2 In terms of Section 4 of the 1959 Act, every public
employer is duty bound to notify the vacancies to the E
concerned employment exchange so as to enable it to
sponsor the names of eligible candidates and also
advertise the same in the newspapers having wider
circulation, employment news bulletins, get announcement made on radio and television and consider all eligible F
candidates whose names may be forwarded by the
concerned employment exchange and/or who may apply
pursuant to the advertisement published in the newspapers or announcements made on radio/television.[Para
16] [887 -G-H; 888-A-B]
Excise Superintendent, Malkapatnam, Krishna District,
A.P v. K.8.N. Visweshwara Rao and others (1996) 6 SCC 216
and Arun Kumar Nayak v Union of India and others (2006) 8
sec 111 - relied on.
G
H
868
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
Union of India and others v N Hargopal and others ( 1987)
B
c
3 sec 308 - referred to.
3. The hope and expectation of the framers of the
Constitution that after independence every citizen will get
equal opportunity in the matter of employment or
appointment to any office under the State and members
of civil services would remain committed to the
Constitution and honestly serve the people of this country
have been belied by what has actually happened in last
four decades. The Public Service Commissions which
have been given the status of Constitutional Authorities
and which are supposed to be totally independent and
impartial while discharging their function in terms of
Article 320 have become victims of spoil system. In the
beginning, people with the distinction in different fields
D of administration and social life were appointed as
Chairman and members of the Public Service
Commissions but with the passage of time appointment
to these high offices became personal prerogatives of the
political head of the Government and men with
E
questionable background have been appointed to these
coveted positions. Such appointees have, instead of
making selections for appointment to higher echelons of
services on merit, indulged in exhibition of faithfulness
to their mentors totally unmindful of their Constitutional
F
responsibility. This is one of several reasons why most
meritorious in the academics opt for private employment
and ventures. The scenario is worst when it comes to
appointment to lower strata of the civil services. Those
who have been bestowed with the power to make
G appointment on Class Ill and Class IV posts have by and
large misused and abused the same by violating relevant
rules and instructions and have indulged in favouritism
and nepotism with impunity resulting in total negation of
the equality clause enshrined in Article 16 of the
Constitution. Thousands of cases have been filed in the
H
•
•
STATE OF BIHAR V
869
UPENDRA NARAYAN SINGH & OTHERS
Courts by aggrieved persons with the complaints that A
appointment to Class Ill and Class IV posts have been
made without issuing any advertisement or sending
requisition to the employment exchange as per the
requirement of the 1959 Act and those who have links with
the party in power or political leaders or who could pull B
strings in the power corridors get the cake of employment.
Cases have also been filed with the complaints that
recruitment to the higher strata of civil services made by
the Public Service Commissions have been affected by
the virus of spoil system in different dimensions and c
selections have been made for considerations other than
merit. [Para 20] [891-F-H; 892-A-F]
A. Umarani v. Registrar, Coop. Societies and others
(2004) 7 sec 112 - relied on.
State of Haryana v Piara Singh (1992) 4 SCC 118; Delhi D
Development Horticulture Employees Union v. Delhi
Administration, Delhi and others (1992) 4 sec 99 State of
UP and others v UP State Law Officers Association and others
(1994) 2 SCC 204; Director, Institute of Management
Development, UP v. Pushpa Srivastava (1992) 4 SCC 33; E
Dr M.A. Haque and others v Union of India and others (1993)
2 SCC 213; J & K Public Service Commission and others v
Dr. Narinder Mohan and others (1994) 2 SCC 630; Dr.
Arundhati Ajit Pargaonkar v State of Maharashtra and others
1994 Suppl. (3) SCC 380; Union of India and others v Kishan F
Gopa/ Vyas (1996) 7 SCC 134; Union of India v Moti Lal (1996)
7 SCC 481; Hindustan Shipyard Ltd. and others v. Dr. P
Sambasiva Rao and others (1996) 7 SCC 499; State of H.P
v Suresh Kumar Verma and another (1996) 7 SCC 562; Dr
Surinder Singh Jamwal and another v. State of J&K and others G
(1996) 9 SCC 619; E. Ramakrishnan and others v. State of
Kera/a and others (1996) 10 sec 565; Union of India and
others vs. Bishambar Dutt 1996 (11) SCC 341; Union of India
and others v. Mahender Singh and others 1997 (1) SCC 245;
P Ravindran and others v. Union Territory of Pondicherry and H
870
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
others 1997 ( 1) SCC 350, Ashwani Kumar and others v. State
of Bihar and others 1997 (2) SCC 1; Santosh Kumar Verma
and others V. State of Bihar and others (1997) 2 sec 713;
State of U. P and others vs. Ajay Kumar (1997) 4 SCC 88;
Patna University and another v. Dr Arnita Tiwari (1997) 7 SCC
B
198 and Madhyamik Shiksha Parishad, UP v. Anil Kumar
Mishra and others (2005) 5 SCC 122 - referred to.
4. The so-called regularization of the services of the
respondents on which heavy reliance was placed in the
context of averments contained in paragraph 4 of the
C counter affidavit filed before this Court by respondent no.3
is a proof of nepotism practiced by the officer and
deserves to be ignored. For the reasons best known to
them, the respondents have not produced copy of the
order by which their services were regularised. Perhaps
D none exists. The statement furnished by counsel for the
appellant, which is accompanied by documents marked
'A' and 'B', shows that in less than 7 months of the
respondents appointment (except respondent no.1 who
is said to have been appointed with effect from 9.10.1991 ),
E
Dr. Darogi Razak is said to have written confidential
memorandum bearing no.20 dated 11.5.1992 (Annexure'A')
to District Animal Husbandry Officer, Aurongabad, Gaya
that ad hoc appointments made vide Memorandum
No.1467 dated 9.10.1991 are being regularized temporarily
F
by the local appointments committee constituted on
11.5.1992. What is most amazing to notice is that the local
appointments committee was constituted on 11.5.1992,
the committee met on the same day and regularised the
ad hoc appointments and on that very day the Regional
G Director sent confidential letter to his subordinate, i.e., the
District Animal Husbandry Officer informing him about the
regularization of ad hoc appointments. No rule or policy
has been brought to the notice of the Court which
empowers the appointing authority to regularize ad hoc
appointments within a period of less than 7 months.
H
..
STATE OF BIHAR V.
871
UPENDRA NARAYAN SINGH & OTHERS
Therefore, this Court has no hesitation to hold that the A
exercise undertaken by Dr. Darogi Razak for showing that
appointments of the respondents were regularized by the
local appointments committee on 11.5.1992 was a farce.
[Para 32] [916-C-H; 917-A]
Secretary, State of Kamataka vs. Uma Devi 2006 (4) SCC B
1 - relied on.
•
5. The initial appointments of the respondents were
made in gross violation of the doctrine of equality
enshrined in Articles 14 and 16 and the provisions of the c
. 1959 Act and the Single Judge of the High Court gravely
erred by directing their reinstatement with consequential
benefits. [Para 33] [917-B]
6. By now it is settled that the guarantee of equality
before law enshrined in Article 14 is a positive concept D
and it cannot be enforced by a citizen or court in a negative
manner. If an illegality or irregularity has been committed
in favour of any individual or a group of individuals or a
wrong order has been passed by a judicial forum, others
cannot invoke the jurisdiction of the higher or superior E
Court for repeating or multiplying the same irregularity or
illegality or for passing wrong order.[Para 34] [917-0-E]
~
Chandigarh Administration and another v. Jagjit Singh
and another (1995) 1 SCC 7 45; Secretary, Jaipur Development
F
Authority, Jaipur v. Dau/at Mal Jain and others (1997) 1 SCC
35; Union of India {Railway Board] and others v. J. V Subhaiah
and others (1996) 2 SCC 258; Gursharan Singh v. New Delhi
Municipal Committee (1996) 2 SCC 459; State of Haryana v.
Ram Kumar Mann (1997) 1 SCC 35; Faridabad CT Scan
...
Centre v. D.G. Health Services and others (1997) 7 SCC 752; G
·:.: ..
Style (Dress Land) v. Union Territory, Chandigarh and another
(1999) 7 SCC 89; State of Bihar and others v. Kameshwar
Prasad Singh and another (2000) 9 SCC 94; Union of India
and another v. International Trading Co. and another (2003) 5
SCC 437 and Directorate of Film Festivals and others v.
H
872
SUPREME COURT REPORTS
(2009] 4 S.C.R.
A
Gaurav Ashwin Jam and others (2007) 4 SCC 737 - referred
to.
7. The orders of the learned Single Judge and
Division Bench are set aside and the writ petition filed by
~
the respondents is dismissed. [Para 37] [924-H]
...
B
Case Law Reference
(1974) 4 sec 3
relied on
Para 12
(1994) 4 sec 138
relied on
Para 13
c
(2006) 2 sec 482
relied on
Para 13
(2007) 5 sec 65
relied on
Para 13
(2008) 2 sec 758
relied on
Para 13
D
(1987) 3 sec 308
referred to
Para 15
(1996) 6 sec 216
relied on
Para 15
(2006) 8 sec 111
relied on
Para 15
(1992) 4 sec 118
referred to
Para 21
E
(1992) 4 sec 99
referred to
Para 22
(1994) 2 sec 204
referred to
Para 23
(1992) 4 sec 33
referred to
Para 24
F
(1993) 2 sec 213
referred to
Para 24
(1994) 2 sec 630
referred to
Para 24
1994 Suppl.
(3) sec 380
referred to
Para 24
G
(1996) 1sec134
referred to
Para 24
..
(1996) 1 sec 481
referred to
Para 24
,_........_
(1996) 1 sec 499
referred to
Para 24
H
(1996) 1 sec 562
referred to
Para 24
STATE OF BIHAR V.
873
UPENDRA NARAYAN SINGH & OTHERS
(1996) 9 sec 619
referred to
Para 24
A
(1996) 1 o sec 565
referred to
Para 24
1996 (11) sec 341
referred to
Para 24
1997 (1) sec 245
referred to
Para 24
B
--
1997 (1) sec 350
referred to
Para 24
..
1997 (2) sec 1
referred to
Para 24
(1997) 2 sec 113
referred to
Para 24
(1997) 4 sec 88
referred to
Para 24
c
(1997) 1 sec 19s
referred to
Para 24
,
(2005) 5 sec 122
referred to
Para 24
(2004) 1 sec 112
relied on
Para 25
D
2006 (4) sec 1
relied on
Para 26
(1995) 1 sec 745
referred to
Para 34
(1997) 1 sec 35
c
referred to
Para 34
E
(1996) 2 sec 258
referred to
Para 34
(1996) 2 sec 459
referred to
Para 34
(1997) 1 sec 35
referred to
Para 34
F
(1997) 1 sec 152
referred to
Para 34
(1999) 1 sec 89
referred to
Para 34
...
(2000) 9 sec 94
referred to
Para 34
k
(2003) 5 sec 437
referred to
Para 34
G
(2007) 4 sec 737
referred to
Para 34
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1741
of 2009
H
874
SUPREME COURT REPORTS
[2009] 4 S.C.R
A
From the Judgement and Order dated 19.03.2007 of the
Hon'ble High Court of Judicature at Patna, in L.P.A. 61 of2007.
Manish Kumar, Gopal Singh, for the Appellants.
Nagendra Rai, Shantanu Sagar, Avinash Sharma, T
B
Mahipal, for the Respondents.
c
The Judgement of the Court was delivered by
G.S. SINGHVI, J.
1. Leave granted
2. After taking cognizance of the fact that large number of
ad hoc appointments were being made in different departments
without complying with the relevant rules and procedure, the
Government of Bihar vide its Circular No. 7260 dated 27 .4.1979
D
which was followed by another Circular No.3001 dated
16.3.1982 imposed ban on such appointments. Notwithstanding
this, ad hoc appointments continued to be made in violation of
the rules and relevant instructions. This compelled the State
Government to pass order dated 10.3.1985 for cancellation of
E
ad hoc appointments and for filling the vacancies in accordance
with the rules. After one year, the issue relating to large scale
illegalities committed in the making of ad hoc appointments was
raised in the Bihar Legislative Assembly and members
expressed concern over such appointments. In the backdrop of
this development, Chief Secretary, Government of Bihar vide
F
his letter dated 11.6.1986 made it clear to all the Secretaries to
the Government, Heads of Departments, Divisional
Commissioners and District Magistrates that they will be
personally responsible for the compliance of the rules and
instructions in the making of ad hoc appointments. It, however,
•
G
appears that the ban imposed by the State Government was
"'
relaxed qua Animal Husbandry Department and vide letter dated
4.7.1987, Under Secretary to the Government informed the
Director, Animal Husbandry that for implementation of the
schemes being operated by the department, appointments may
H
be made on Class IV posts by committees comprising of
-
..
STATE OF BIHAR V.
875
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
Regional Director, Animal Husbandry as Chairman, Regional A
Joint Director, Animal Husbandry/Assistant Director, Animal
Husbandry as Secretary and one officer belonging to Scheduled
Castes/Scheduled Tribes.
3. By taking advantage of letter dated 4. 7 .1987, Dr. Darogi
Razak, the then Regional Director, Animal Husbandry, Gaya, B
made a number of appointments on Class 111 and Class IV posts
without issuing any advertisement or sending requisition to the
employment exchange and without making selection of any sort.
The respondents were also beneficiaries of the largess doled
out by Dr. Darogi Razak in violation of instructions issued by C
the Chief Secretary and the Animal Husbandry Department. They
were appointed as Class IV employees on 9.10.1991
(respondent no.1 ), 24.10.1991 (respondent no.2) and
27.10.1991 (respondent nos. 3, 4 and 5). Copies of the orders
of appointment of the respondents have been placed on record D
along with affidavit dated 8.9.2008 of Dr. Ram Narayan Singh,
Joint Director (HQ), Animal Husbandry, Animal Husbandry and
Fisheries Resources Department, Bihar. For the sake of
reference, the relevant extracts of English translation of order
passed in the case of respondent no.1 - Upendra Narayan E
Singh are reproduced below:
"OFFICE OF REGIONAL DIRECTOR, ANIMAL
HUSBANDRY, MAGADH RANGE, GAYA
ORDER
F
In exercising the power given by letter no.5094 dated
04.07.1987 and letter no.3430 dated 14.12.1977 of
Deputy Secretary, Department of Animal Husbandry and
Cooperative, the adhoc appointments of the following
persons on the class IV posts in the scale Rs.775-12G
955-14-1025 are made.
Their services can be terminated without any prior notice.
Health certificate from Civil Surgeon will have to be
produced at the time of joining.
H
•
876
SUPREME COURT REPORTS
[2009) 4 S.C.R.
A
No TA/DA is admissible at the time of joining.
B
c
SI.No.
Name and Address
Post
1.
Sri Upendra Narayan Singh
S/o Sri Awdhesh Singh
Class IV
Viii + P.O. Kunda
Distt Aurangabad
Sd/-
Regional Director
Animal Husbandry,
Magadh Range, Gaya
Memo no 1467 (CON) Dated 09.10.1991
Copy to Serial no.1 for information."
4. On receipt of complaints that ad hoc appointments had
0
been made in the department for extraneous considerations,
Secretary to the Government, Animal Husbandry and Fisheries
Department issued circular dated 28.10.1991 whereby
instructions contained in letter dated 4. 7.1987 were superseded
and it was directed that such appointments should be made
E
strictly in accordance with the instructions issued by the Chief
Secretary. However, no step appears to have been taken in the
matter of illegal/irregular appointments already made, till the
issue of letter dated 16.4.1996 by the Secretary of the
department to the Director that in view of the institution of criminal
F
case against the then Regional Director, Animal Husbandry,
Gaya, payment of salary to those appointed by him should be
stopped.
5. On receipt of communication from the Secretary,
Director. Animal Husbandry got conducted an inquiry into the
G
appointments made by the then Regional Director, Animal
...
Husbandry, Gaya. In that inquiry, it was found that about 5 dozen
appointments were made without sanctioned posts and without
following the procedure prescribed vide circular dated 4.7.1987.
Thereafter, notices dated 3.5.2001 were issued to the
H
respondents requiring them to show cause against the proposed
..
STATE OF BIHAR V.
877
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
termination of their services. In their replies, the respondents A
claimed that the Regional Director had appointed them after
due selection and that the enquiry got conducted by the Director,
Animal Husbandry cannot be made basis for terminating their
services after a gap of almost 10 years. After considering their
replies, the competent authority passed orders dated 23.5.2001
B
terminating the services of the respondents, who challenged
the same by filing a petition under Article 226 of the Constitution
of India, which was registered as CWJC No. 7816 of2001. The
respondents pleaded that the action taken against them was
vitiated due to violation of the rules of natural justice and arbitrary C
exercise of power because the concerned authority did not give
them the effective opportunity of hearing and the instruction
contained in memorandum dated 16.4.1996 could not have
been applied to their case because they had been appointed
prior to cut off date specified therein i.e. 28.10.1991. The D
appellant herein contested the writ petition by asserting that the
services of the writ petitioners were terminated because their
initial appointments were illegal.
6. The learned Single Judge relied upon the order passed
in CWJC No.5140 of 1998 and quashed the termination of the E
respondents' services with a direction that they be reinstated
with consequential benefits. Letters PatentAppeal No.61 of2007
•
filed by the appellant was dismissed by the Division Bench on
the ground that similar appeals filed in the cases of Arun Kumar
and others and Arjun Chaudhary had already been dismissed. F
In the opinion of the Division Bench, a different view could not
be taken in the case of the respondents because that would
give rise to an anomalous situation.
7. Learned counsel for the appellant argued that the High
.J·
Court committed serious error by ordering reinstatement of the G
respondents ignoring that their initial appointments were ex
facie illegal inasmuch as the concerned authority did not follow
any procedure consistent with the doctrine of equality enshrined
in Articles 14 and 16 of the Constitution as also the instructions
issued by the Government for making ad hoc appointments. H
878
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
Learned counsel emphasized that even while making ad hoc
appointment, the competent authority is required to advertise
the posts or at least send requisition to the employment
exchange and make selection from amongst the eligible
persons, but no such procedure was followed by the then
s
Regional Director, Animal Husbandry, Gaya, before appointing
the respondents. Shri Nagendra Rai, learned senior counsel
appearing for the respondents submitted that the directions
given for reinstatement of his clients may not be disturbed
because other similarly situated persons have already been
c reinstated pursuant to the directions given by the High Court. To
buttress this submission, the learned senior counsel invited the ·
Court's attention to the orders passed in CWJC No.13328/1992
- Rangosh Sharma and others v. State of Bihar, CWJC
No.15571/2001 -Arjun Choudhary v. State of Bihar and others,
0
CWJC No.6554/2000 - Birendra Kumar Singh v. State of Bihar
and others, LPA No.325/2000 - State of Bihar and others v.
Arun Kumar and others and LPA No. 47/2006 - State of Bihar
and others v. Arjun Choudhary. Shri Rai then referred to the
averments contained in paragraph 4 of the counter-affidavit to
the Special Leave Petition to show that services of the
E
respondents were regularized in 1992 and argued that the
concerned authority illegally terminated their services by
assuming that they were ad hoc appointees.
8. We have given serious thought to the entire matter and
F
also gone through the statement furnished by learned counsel
for the appellant during the course of arguments. Equality of
opportunity to all irrespective of their caste, colour, creed, race,
religion and place of birth which constitutes one of the core
values of the Universal Declaration of Human Rights also forms
G
part of preamble to the Constitution of India, which reads as
under:-
...
"WE, THE PEOPLE OF !NOIA, having solemnly resolved
to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC and to secure to
H
all its citizens:
..
STATE OF BIHAR V.
879
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
-
•
JUSTICE, social, economic and political;
A
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all;
B
FRATERNITY assuring the dignity of the individual and
the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day
of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION."
c
9. For achieving various goals set out in the preamble,
framers of the Constitution included a set of provisions in Part Ill
with the title "Fundamental Rights" and another set of provisions
in Part IV with the title "Directive Principles of State Policy".
D
The provisions contained in Part Ill of the Constitution by and
large contain negative injunctions against State's interference
with the fundamental rights of individuals and group of individuals
and also provide for remedy against violation of such rights by
direct access to the highest Court of the country. Part IV E
enumerates State's obligation to make policies and enact laws
for ensuring that weaker segments (have nots) of the society
..i
are provided with opportunities to come up to a level where
they can compete with others (haves).
10. The inclusion of a set of fundamental rights in India's F
Constitution had its genesis in the forces that operated in the
national struggle during British rule. Some essential rights like
personal freedom, protection of one's life and limb and of one's·
good name, derived from the common law and the principles of
~-
British jurisprudence, were well accepted and theoretically G
recognized by various British enactments. By way of illustration,
reference can be made to Section 87 of the Charter Act of 1883
wherein it was laid down that no native of the British India shall
by reason only of his religion, place of birth, descent, colour, or
any of them, be disabled from nolding any place, office or H
880
SUPREME COURT REPORTS
[2009) 4 S.C.R.
A
employment under the Company. The substance of this provision
was incorporated in Section 96 of the Government of India Act.
1915. In the Government of India Act, 1935, the guarantee
against discrimination was reiterated and given extended
meaning. However, in pre-independence period there was no
B
chapter of fundamental rights of a justiciable nature and even
the safeguards provided under various statutes could be taken
away by the British Parliament or a legislative authority in India
(The Framing of India's Constitution, Vol. II, edited by B. Shiva
Rao).
C
11. The Constituent Assembly which prepared draft of the
Constitution extensively debated on the necessity of having a
separate chapter relating to fundamental rights. The principle
of guaranteeing to every person equality before the law and the
equal protection of the laws, was first included in the drafts
D
submitted to the Sub-Committee on Fundamental Rights by Shri
K.M. Munshi and Dr. B.R. Ambedkar. After discussing the matter
and considering the suggestions made by Shri B.N. Rau, Alladi
Krishnaswami Ayyar, Shri K. M. Munshi and others, the final draft
E
of Article 14 was adopted, which now reads as under:
'The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory
of India."
The principle of non-discrimination on grounds of religion,
F
race, colour, caste or language in the matter of public
employment was contained in the drafts submitted by Shri K.M.
Munshi and Dr. B.R. Ambedkar. Shri K.T. Shah and Shri Harnam
Singh also incorporated this basic principle in clauses 2 and 8
of their respective drafts. When the Sub-Committee on
G
Fundamental Rights discussed the subject, Shri K.T. Shah
pre~ad 11is view that the Constitution should guarantee nondiscrimination, not only in "public employment" but also in
"employment in any enterprise aided or assisted by the State".
However, his suggestion was not accepted by the Sub-
- H
committee. The issue was then debated in the context of
..
..
STATE OF BIHAR V.
881
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
demand for incorporation of a clause enabNng the State to
A
provide for reservation in favour of backward classes, etc. and
ultimately the draft was adopted (The Framing of India's
Constitution, Vol. II, edited by B. Shiva Rao). Clauses (4A) and
(48) were added to Article 16 by the Constitution (7ih
Amendment) Act, 1995. Article 16 in its present form reads as
B
under:
"16. Equality of opportunity in matters of public
..
employment. - (1) There shall be equality of opportunity
for all citizens in matters relating to employment or
appointment to any office under the State.
c
(2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any
employment or office under the State.
D
(3) Nothing in this article shall prevent Parliament from
making any law prescribing, in regard to a class or classes
of employment or appointment to an office under the
Government of, or any local or other authority within, a
State or Union territory, any requirement as to residence
E
within that State or Union territory prior to such employment
or appointment.
(4) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts
in favour of any backward class of citizens which, in the
F
opinion of the State, is not adequately represented in the
services under the State.
(4A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of G
promotion, with consequential seniority, to any class or
classes of posts in the services under the State in favour
of the Scheduled Castes and the Scheduled Tribes which,
in the opinion of the State, are not adequately represented
in the services under the State.
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SUPREME COURT REPORTS
[2009] 4 S.C.R
(48) Nothing- in this article shall prevent the State from
considering any unfilled vacancies of a year which are
reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or
(4A) as a separate class of vacancies to be filled up in
any succeeding year or years and such class of vacancies
shall not be considered together with the vacancies of the
year in which they are being filled up for determining the
ceiling of fifty per cent reservation on total number of that
year.
C
(5) Nothing in this article shall affect the operation of any
law which provides that the incumbent of an office in
connection with the affairs of any religious or
denominational institution or any member of the governing
body thereof shall be a person professing a particular
D
religion or belonging to a particular denomination."
12. In E.P. Royappa v. State of Tamil Nadu and others
[(1974) 4 SCC 3], the Constitution Bench negatived the
appellant's challenge to his transfer from the post of Chief
Secretary of the State to that of Officer on Special Duty. P.N.
E
Bhagwati, J. (as His Lordship then was) speaking for himself,
Y.V. Chandrachud and V.R. Krishna Iyer, JJ. considered the ambit
and reach of Articles 14 and 16 and observed:
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"Article 14 is the genus while Article 16 is one of its species.
Article 14 declares that the State shall not deny any person
equality before the law or equal protection of the laws
within the territory of India. Article 16 gives effect to the
doctrine of equality in all matters relating to public
employment. Article 16 embodies the fundamental
guarantee that there shall be equality of opportunity for all
citizens in matters relating to employment or appointment
to any office under the State. No citizen shall be ineligible
for or discriminated against irrespective of any employment
or office under the State on the grounds only of religion,
race, caste, sex, descent. place of birth, residence or any
•
...
STATE OF BIHAR V.
883
UPENDRA NARAYAN SINGH & OTHER~ [G.S. SINGHVI, J.]
of them. Though, enacted as a distinct and independent A
fundamental right because of its great importance as a
principle ensuring equality of opportunity in public
employment which is so vital to the building up of the new
classless egalitarian society envisaged in the Constitution.
The basic principle which, therefore, informs both Articles
B
14 and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of Bose.
J., "a way of life'', and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot c
countenance any attempt to truncate its all-embracing
scope and meaning, for to do so would be to violate its
activist magnitude. Equality is a dynamic concept with
many aspects and dimensions and it cannot be "cribbed,
cabined and confined" within traditional and doctrinaire D
limits. From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and
E
is therefore violative of Article 14, and if it effects any
matter relating to public employment, it is also violative of
Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of treatment."
13. The equality clause enshrined in Article 16 mandates
that every appointment to public posts or office should be made
by open advertisement so as to enable all eligible persons to
compete for selection on merit - Umesh Kumar Nag pal v. State
F
of Haryana and others [(1994) 4 SCC 138], Union Public G
Service Commission v. Girish Jayanti Lal Vaghela [(2006) 2
SCC 482], State of Manipur and others v. Y Token Singh and
others [(2007) 5 SCC 65] and Commissioner, Municipal
Corporation, Hyderabad and others v. P Mary Manoranjani
and another [(2008) 2 SCC 758]. Although, the Courts have
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884
SUPREME COURT REPORTS
[2009] 4 S.C.R.
A
carved out some exceptions to this rule, for example,
compassionate appointment of the dependent of deceased
employees, for the purpose of this case it is not necessary to
elaborate that aspect.
14. In Girish Jayanti Lal Vaghe/a's case, this Court, while
B
reversing an order passed by the Central Administrative Tribunal
which had directed the Union Public Service Commission to
relax the age requirement in the respondent's case, elucidated
the meaning of the expression "equality of opportunity for all
citizens in matters relating to public employment" in the following
C words:
D
E
F
G
H
"Article 16 which finds place in Part 111 of the Constitution
relating to fundamental rights provides that there shall be
equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
The main object of Article 16 is to create a constitutional
right to equality of opportunity and employment in public
offices. The words 'employment' or 'appointment' cover
not merely the initial appointment but also other attributes
of service like promotion and age of superannuation, etc.
The appointment to any post under the State can only be
made after a proper advertisement has been made inviting
applications from eligible candidates and holding of
selection by a body of experts or a specially constituted
committee whose members are fair and impartial through
a written examination or interview or some other rational
criteria for judging the inter se merit of candidates who
have applied in response to the advertisement made. A
regular appointment to a post under the State or Union
cannot be made without issuing advertisement in the
prescribed manner which may in some cases include
inviting applications from the employment exchange where
eligible candidates get their names registered. Any regular
appointment made on a post under the State or Union
without issuing advertisement inviting applications from
eligible candidates and without holding a proper selection
•
•
STATE OF BIHAR V.
885
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J]
...
where all eligible candidates get a fair chance to compete A
would violate the guarantee enshrined under Article 16 of
the Constitution."
15. For ensuring that equality of opportunity in matters
relating to employment becomes a reality for all, Parliament 8
enacted the Employment Exchanges (Compulsory Notification
of Vacancies) Act, 1959 (for short 'the 1959 Act'). Section 4 of
'
that Act casts a duty on the employer in every establishment in
•
public sector in the State or a part thereof to notify every vacancy
to the employment exchange before filling up the same. In Union
of India and others v. N. Hargopal and others [(1987) 3 sec c
308], a two-Judge Bench of this Court considered the question
whether persons not sponsored by the employment exchange
could be appointed to the existing vacancies. The High Court
of Andhra Pradesh had ruled that the provisions of 1959 Act
)
are not applicable to Government establishment; that the Act D
does not cast duty either on the public sector establishment or
on the private sector establishment to make the appointments
from among candidates sponsored by the employment
exchanges only, and that instructions issued by the Government
of India that candidates sponsored by the employment E
exchanges alone should be appointed are contrary to Articles
14 and 16. This Court referred to Sections 3 and 4 of the 1959
..
Act, adverted to the reasons enumerated in the counter-affidavit
filed on behalf of the Union of India before the High Court to
justify the appointments only from among the candidates
F
sponsored by the employment exchange and held:
" ......... The object of recruitment to any service or post is
to secure the most suitable person who answers the
demands of the requirements of the job. In the case of
.;.
public employment, it is necessary to eliminate G
arbitrariness and favouritism and introduce uniformity of
standards and orderliness in the matter of employment.
There has to be an element of procedural fairness in
recruitment. If a public employer chooses to receive
applications for employment where and when he pleases,
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c
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886
SUPREME COURT REPORTS
[2009] 4 S.C.R.
and chooses to make appointments as he likes, a grave
element of arbitrariness is certainly introduced. This must
necessarily be avoided if Articles 14 and 16 have to be
given any meaning. We, therefore, consider that insistence
on recruitment through Employment Exchanges advances
rather than restricts the rights guaranteed by Articles 14
and 16 of the Constitution. The submission that
Employment Exchanges do not reach everywhere applies
equally to whatever method of advertising vacancies is
adopted. Advertisement in the daily press, for example, is
also equally ineffective as it does not reach everyone
desiring employment. In the absence of a better method
of recruitment, we think that any restriction that employment
in government departments should be through the medium
of employment exchanges does not offend Articles 14
and 16 of the Constitution."
In Excise Superintendent, Malkapatnam, Krishna District,
A.P v. K.8 N. Visweshwara Rao and others [(1996) 6 SCC 216],
a three-Judge Bench while reiterating that the requisitioning
authority/establishment must send intimation to the employment
E exchange and the latter should sponsor the names of candidates,
observed:
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H
" .... It is common knowledge that many a candidate is
unable to have the names sponsored, though their names
are either registered or are waiting to be registered in the
employment exchange, with the result that the choice of
selection is restricted to only such of the candidates whose
names come to be sponsored by the employment
exchange. Under these circumstances, many a deserving
candidate is deprived of the right to be considered for
appointment to a post under the State. Better view appears
to be that it should be mandatory for the requisitioning
authority/establishment to intimate the employment
exchange, and employment exchange should sponsor the
names of the candidates to the requisitioning departments
for selection strictly according to seniority and reservation,
..
..
...
STATE OF BIHAR V.
887
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
,.
as per requisition. In addition, the appropriate department A
or undertaking or establishment should call for the names
by publication in the newspapers having wider circulation
and also display on their office notice boards or announce
on radio, television and employment news bulletins; and
then consider the cases of all the candidates who have
B
applied. If this procedure is adopted, fair play would be
subserved.