Md. Ashif & Ors vs State Of Bihar & Ors

Md. Ashif & Ors. ...Appellants

Versus

State of Bihar & Ors. ...Respondents

JUDGMENT

T.S. THAKUR, J.

1. Leave granted.

2. These appeals by special leave arise out of an order

passed by a Division Bench of the High Court of Patna

whereby Letters Patent Appeal Nos.33 and 540 of 2002 have

been allowed, the order passed by the learned Single Judge 2

set aside and Writ Petitions No.11701 and 9024 of 2001

dismissed.

3. The appellants in these appeals were in June 1985

appointed as Voluntary Health Workers in State run

dispensaries within the district of Darbhanga in the State of

Bihar. In lieu of their services they were paid a monthly

honorarium of Rs.50/- only. Less than five months after

their initial appointment they were absorbed as Primary

Health Workers by the Chief Medical Officer which carried a

pay scale of Rs.535-765. It is not in dispute that the

appellants continued to work for nearly 15 years as Primary

Health Workers, till their services were terminated by an

order dated 20th February, 2001 on the ground that their

promotion/absorption as Primary Health Workers was illegal

and contrary to the rules. The termination, it appears, came

pursuant to an enquiry regarding procedure followed in the

making of the appointments to class III posts. The enquiry

revealed that the appointments were in breach of 3

circular/instructions dated 3rd December, 1980 issued by the

Chief Secretary of the State of Bihar pointing out that

appointment to Class-3 posts had been made in violation of

procedure laid down by the State Government in terms of

two circulars dated 10th July, 1980 and 26th September,

1980. The Government, therefore, directed all the Heads of

the Departments, Divisional Commissioners and the District

Magistrates to review the system and to send their reports

to ensure that action for filling up of the vacant posts is

taken in accordance with the prescribed procedure. It was

further directed that appointments made in violation of the

prescribed procedure would not only call for action against

those who make such appointments but render the

appointments liable to be cancelled.

4. Aggrieved by the termination of their services as

Primary Health Workers and reversion to Voluntary Health

Workers the appellants filed Writ Petitions No.11701 and

9024 of 2001 in the High Court of Patna, inter alia, asserting 4

that the appointments of the petitioners (appellants herein)

had been made after a proper advertisement and that the

termination of their services 15 years after the commission

of the alleged irregularity in making the appointments was

unfair and legally impermissible. By an order dated 9th

November, 2001 a Single bench of the High Court of Patna

held the termination of the services of the appellants to be

illegal inasmuch as the same was based on an alleged

irregularity committed 15 years earlier. Reliance in support

was placed upon the decisions of this Court in Roshni Devi

and Ors. Vs. State of Haryana and Ors. (1998) 8 SCC

59 and Union of India & Ors. Vs. Kishorilal Bablani

(AIR 1999 SC 517).

5. The order passed by the learned Single Judge was,

assailed before a Division bench in Letters Patent Appeal

Nos.33 and 540 of 2000 filed by the State of Bihar. The

Division Bench opined that since the initial appointment of

the appellants herein was illegal the very fact that the

appellants had worked for a long period did not cure that 5

defect so as to justify their reinstatement in service. In

support of that view the Division Bench placed reliance upon

the decisions of this Court in Ashwani Kumar & Ors. Vs.

State of Bihar & Ors. (AIR 1997 SC 1628), State of

Madhya Pradesh & Anr. Vs. Dharam Bir (1998) 6 SCC

165 and Subedar Singh & Ors. Vs. District Judge,

Mirzapur & Anr. (AIR 2001 SC 201). The present appeals

call in question the correctness of the said order as already

noticed above.

6. We have heard learned counsel for the parties at

considerable length. The legal position regarding the right of

an employee to seek regularisation of his services stands

settled by a long line of the decisions of this Court. In

Ashwani Kumar's case (supra) this Court declared that the

question of regularisation of the services of an employee

may arise in two contingencies. It may arise firstly in

situations where against an available clear vacancy an

appointment is made on ad hoc or daily-wage basis by an

authority competent to do so and such appointment is 6

continued from time to time without any artificial break in

service. Any such appointment may be regularized giving

him security of tenure. The all important condition precedent

for such regularization is that the initial entry of such an

employee must be made against a sanctioned vacancy and

by following the rules and regulations governing such entry.

7. The second situation in which regularization could be

granted was where the initial entry of the employee against

an available vacancy was found suffering from some flaws in

the procedure in making the appointment though the person

appointing was competent to make such initial recruitment

and had otherwise followed the procedure prescribed for

such recruitment. A need may then arise for regularization

of the initial appointment by the competent authority with a

view to curing the irregularity if any in the same and with a

view to granting security of tenure to the incumbent. It is

necessary in such situations that the initial entry of the 7

employee is not totally illegal or in breach of the established

rules and regulations governing such recruitment.

8. The law regarding regularization of employees was on a

comprehensive review authoritatively declared by a

Constitution Bench of this Court in Secretary, State of

Karnataka & Ors. Vs. Uma Devi (3) & Ors. (2006) 4

SCC 1. This Court in that case drew a distinction between

an irregularity and an illegality in the making of an

appointment and declared that where the due process of

appointment has been deviated from, the Court can

regularize the same. In cases where the process itself is

completely violative of the constitutional scheme underlying

public employment and no procedure has been followed

while granting such appointments the Court cannot allow

such an illegality to continue irrespective of the length of

time for which it has continued. Relying upon the decision of

this Court in Ashwani Kumar's case (supra) this Court in

Uma Devi's case (supra) observed:

8

"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim 9

directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates."

9. The above decision has been followed by this Court in

Mohd. Abdul Kadir & Anr. Vs. Directorate General of

Police, Assam & Ors. (2009) 6 SCC 611, where this

Court held that employees who were recruited in connection

with a scheme could not claim continuance or regularization

in service even when they may have worked on ad hoc basis

for as long as two decades. The decision of this Court in

State of Karnataka and Ors. Vs. G.V. Chandrashekar

(2009) 4 SCC 342, once more reiterated the legal position

and declared that the observations made by a three-Judge

Bench of this Court in U.P. State Electricity Board Vs.

Pooran Chandra Pandey and Ors. (2007) 11 SCC 92, 10

were only in the nature of obiter dicta. In Pooran Chandra

Pandey's case (supra) a two-Judge Bench of this Court had

tried to distinguish the ratio of the decision of this Court in

Uma Devi's case (supra) and held that the said decision

had to be read in conformity with Article 14 of the

Constitution and that the same could not be applied

mechanically. The decision in G.V. Chandrashekar's case

(supra) did not find that reasoning to be correct as is

evident from the following passage appearing in the said

decision:

"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay 11

down the correct law and which one should be followed.

91. We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.

92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB v. Pooran Chandra Pandey (2007) 11 SCC 92 should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be relied upon or made basis for bypassing the principles laid down by the Constitution Bench."

10. Reference at this stage may also be made to the

decisions of this Court in Pinaki Chatterjee Vs. Union of

India & Ors. (2009) 5 SCC 193 and General Manager, 12

Uttaranchal Jal Sansthan Vs. Laxmi Devi & Ors. (2009)

7 SCC 205 where this Court has followed Uma Devi's case

(supra) and declared that regularization cannot be granted if

the same would have the effect of violating Articles 14 and

16 of the Constitution.

11. Applying the test laid down by this Court in Uma

Devi's case (supra) and the cases referred to above, to the

case at hand, there is no gainsaying that the appointments

of the appellants as Primary Health Workers were totally

illegal and violative of Articles 14 and 16 of the Constitution

which guarantee equality of opportunity to all those who

were otherwise eligible for such appointments. The Chief

Medical Officer who had made the appointments was not

vested with the power to do so nor were the claims of other

candidates eligible for appointments against the posts to

which the appellants were appointed, considered.

Surprisingly, the appointments had come by way of

absorption of the appellants who were working as Voluntary 13

Health Workers on a monthly honorarium of Rs.50/- only.

The High Court has, in our opinion, correctly held that there

was no cadre of Voluntary Health Workers who were working

on an honorarium in State run dispensaries. The very nature

of the appointment given to the appellants as Voluntary

Health Workers was honorary in nature which entitled them

to the payment of not more than Rs.50/- per month. It is

difficult to appreciate how the Chief Medical Officer could

have regularized/absorbed such Voluntary Health Workers

doing honorary service against the post of Primary Health

Workers which carried a regular pay-scale and which could

be filled only in accordance with the procedure prescribed for

that purpose. The appointment of the appellants against the

said posts was thus manifestly illegal and wholly undeserved

to say the least. Inasmuch as these appointments came to

be cancelled pursuant to the said directions no matter nearly

a decade and a half later the termination could not be said

to be illegal so as to warrant interference of a writ court for

reinstatement of those illegally appointed. The High Court 14

was, in that view of the matter, justified in declining

interference with the order of cancellation and dismissing

the writ petitions.

12. We see no reason to interfere with the order of Division

Bench of the High Court. These appeals accordingly fail and

are hereby dismissed. No costs.

.................................J. (J.M. PANCHAL)

.................................J. (T.S. THAKUR) New Delhi May 6, 2010