MD. ASHIF AND ORS.versusSTATE OF BIHAR AND ORS.

      '-'

                     (2010) 6 S.C.R. 191

                    MD. ASHIF AND ORS.                         A
                              v.
                 STATE OF BIHAR AND ORS.
             (Civil Appeal Nos. 4256-4257 of 2010)
                         MAY 6, 2010
                                                               B
            [J.M. PANCHAL AND T.S. THAKUR, JJ.]

     Service Law - Termination - On ground of illegal initial
appointment - Voluntary Health Workers, working on monthly
honorarium in State run dispensaries - Appointed by way of C
regularization/absorption as Primary Health Workers - They
worked thus for 15 years, whereafter they were terminated on
the ground that their initial appointments were manifestly
illegal - J4stification of - Held: Justified - The appointment
process itself was completely violative of the constitutional D
scheme underlying public employment - No procedure was
followed while granting such appointments - The Chief
Medical Officer, who made the appointments, was not vested
with the power to do so, nor were the claims of other candidates
eligible for the appojp_tments considered - Court cannot allow E
such an illegality to continue irrespective of the length of time
for which it has continued - Constitution of India, 1950 -
Articles 14 and 16.

     Appellants were working in State run dispensaries as
Voluntary Health Workers (VHWs) on a monthly                   F
honorarium of Rs.501-. After some time, they were
appointed by way of regularization/absorption as Primary
Health Workers on a regular pay scale and they worked
thusJor 151years. later, their services were terminated on
the ground that their initial appointments were manifestly     G
illegal.

    The appellants challenged tneir termination before
the High Court. A Single Judge of the High Court set
                              191                              H
    192      SUPREME COURT REPORTS             [2010] 6 S.C.R.


A aside the termination, on the ground that the same was
  based on an alleged irregularity committed 15 years
  earlier. However, the Division Bench, in Letters Patent
  Appeal filed by the respondent-State, set aside the order
  passed by the Single Judge holding that since the initial
s appointment of the appellants was illegal, the very fact
  that the appellants had worked for a long period did not
  cure that defect so as to justify their re-instatement in
  service. Hence the present appeals.

          Dismissing the appeals, the Court
c
       HELD:1.1. 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. It has
  been held by this Court that the question of regularisatio~
D of the services of an employee may arise in two
  contingencies. It may arise firstly in situations Whf!re
  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 continued
E from time to time without any artificial bi:itf!k 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
F and by following the rules and regulations governing
  such entry. [Para 6] [197-F-H; 198-A]

       1.2. The second situation in which regularization
  could be granted was where the initial entry of the
  employee against an available vacancy was found
G 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 proceduce prescribed for such
  recruitment. A need may then arise for regularization of
H the initial appointment by the competent authority with a
  MD. ASHIF AND ORS. v. STATE OF BIHAR AND                193
                    ORS.
view to curing the irregularity if any in the same and with.; A
a view to granting security of tenure to the incumbent. It
is necessary in such situations that the initi,al entry 'of 'the ·
employee is not totally illegal or in breach of the'
established rules and regulations governing such
recruitment. [Para 7] [198-B-D]                     ·           · B

     1.3. There is a distinction between an irregularity and
an illegality in the making of an appointment. Where the
due process of appointment has been deviated from, the
Court can regularize the same. In cases where the                C
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              D
continued. [Para 8] (198-E-G]

    1.4. In the case at hand, there is no gainsaying that
the appointments of the appellants as Primary Health
Workers were totaUy illegal and violative of Articles 14
and 16 of the Constitution which guarantee equality of E
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 F
appellants were appointed, considered. Surprisingly, the·
appointments had come by way of absorption of the
appellants who were working as Voluntary Health
Workers on a monthly honorarium of Rs.50/- only. [Para
11] [202-D-G]                                             G
     1.5. The· High Court correctly held that there was no
cadre of Voluntary Health Workers who were working on
an honorarium in State run dispensarres. The very nature
of the appointment given to the appellants as Voluntary
                                                                 H
    194     SUPREME COURT REPORTS              [2010] 6 S.C.R.


A 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
s 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.
c 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
D was, in that view of the matter, justified in declining
  interference with the order of cancellation and dismissing
  the writ petitions. [Para 11) (202-F-H; 203-A-C]

         Secretary, State of Karnataka & Ors. v. Uma Devi (3) &
    Ors. (2006) 4 SCC 1, followed.
E
       Ashwani Kumar & Ors. v. State of Bihar & Ors. AIR 1997
  SC 1628; Mohd. Abdul Kadir & Anr. v Directorate General of
  Police, Assam & Ors. (2009) 6 SCC 611; Pinaki Chatterjee
  v. Union of India & Ors. (2009) 5 SCC 193 and General
F Manager, Uttaranchal Jal Sansthan v. Laxmi Devi & Ors.
    (2009) 7 sec 205, relied on.

       Roshni Devi and Ors. v. State of Haryana and Ors. (1998)
  8 SCC 59; Union of India & Ors. v. Kishorilal Bablani AIR
  1999 SC 517; State of Madhya Pradesh & Anr. v. Dharam
G Bir (1998) 6 SCC 165; Subedar Singh & Ors. v. District Judge,
  Mirzapur & Anr. AIR 2001 SC 201; State of Karnataka and
  Ors. v. G. V. Chandrashekar (2009) 4 SCC 342 and UP.
  State Electricity Board v. Pooran Chandra Pandey and Ors.
    (2007) 11 sec 92, referred to.
H
  MD. ASHIF AND ORS. v. STATE OF BIHAR AND              195
                   ORS.
                    Case Law Reference:                         A
    (1998} 8 sec 59          referred to          Para 4

   AIR 1999 SC 517           referred to          Para 4 ·

   AIR 1997 SC 1628          relied on            Para 5
                                                                8
    (1998} 6 sec 165         referred to          Para 5

    AIR 2001 SC 201          referred to          Para 5

    (2006) 4 sec 1           followed             Para 8

    (2009) 6 sec 611
                                                                c
                             relied on            Para 9

    (2009) 4 sec 342         referred to          Para 9

    (2007) 11 sec 92         referred to          Para 9
    (2009) 5 sec 193         relied on            Para 10       D

    (2009) 1 sec 205         relied on            Para 10

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
4256-4257 of 2010.
                                                                E
    From the Judgment & Order dated 16.04.2003 of the High
Court of Judicature at Patna in LP.A. No. 33 of 2002,

    K.K. Rai, Ambhoj Kumar Sinha for the Appellants.

    Manish Kumar. Gopal Singh for the Respondents.              F

    The Judgment of the Court was delivered by

    T.S. THAKUR, J. 1. Leave granted.

     2. These appeals by special leave arise out of an order    G
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 set
aside and Writ Petitions No.11701 and 9024 of 2001
dismissed.                                                      H
    196      SUPREME COURT REPORTS                 [2010] 6 S.C.R.


A         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
8   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 termin~ted by an order dated 20th February,
c   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
    Ill posts. The enquiry revealed that the appointments were in
D   breach of 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
E   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
F   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
G 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 that the
  appointments of the petitioners (appellants herein) had been
  made after a proper advertisement and that the termination of
H their services 15 years after the commission of the alleged
   MD. ASHIF AND ORS. v. STATE OF BIHAR AND                   197.
              ORS. [T.S. THAKUR, J.]

irregularitx in making the appointments was unfair and legally        A
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 c:ommitted 15 years
earlier. Reliance in support was placed upon the decisions of         B
this Court in Roshni Devi and Ors. Vs. State of Haryana and
Ors. (1998) 8 SCC 59 and Union of India & Ors. Vs. Kishorila/
Bablani (AIR 1999 SC 517).

      5. The order passed by the learned Single Judg~ was,
assailed before a Division bench in Letters Patent Appeal             C
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 defect so as to
justify their reinstatement in service. In support of that view the   D
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                E
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        F
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    G
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 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   H
    198       SUPREME COURT REPORTS                    [2010) 6 S.C.R.


A 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 o'f the employee against an
8 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
C 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 employee is not totally illegal
  or in breach of the established rules and regulations governing
  such recruitment.
D
        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.
E 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
F 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
G Court in Uma Devi's case (supra) observed:

          "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
H         upholding a violation of Article 14 or in ordering the
MD. ASHIF AND ORS. v. STATE OF BIHAR AND                    199
           ORS. [T.S. THAKUR, J.]
 overlooking of the need to comply with the requirements            A
 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         B
 qualified persons, the same would nl."'t 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             c
 discontinued. Similarly, a temporary employee could not
 claim to be made permanent on ~he 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,        D
 he would not be entitled to be absorbed in regular servic~
 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     E
 recruitment at the instance of temporary employees whose
 period of employment-has come to an end or of ad hoc
 employees who byTue 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 fc:>r absorption, regularisation, or permanent          F
 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          G
 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 directions,
 since, after all, if ultimately the employee approaching it
  is found entitled to relief, it may be possible for it to mould   H
    200      SUPREME COURT REPORTS                    [2010] 6 S.C.R.


A         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
B         careful in ensuring that they do not interfere unduly with the
          economic arrangement 0f its affairs by the State or its
          instrumentalities or lend themselves the instruments to
          facilitate the bypassing of the constitutional and statutory
          mandates."
c         9. The above decision has been followed by this Court in
    Mohd. Abdul Kadir & Anr. Vs. Directorate General of Police,
    Assam & Ors. (2rl09) 6 SCC 611, where this Court held that
  employees who were recrui~d in connection with a scheme
  could not claim cor.tinuance or regularization in service even
D when they may have worked on ad hoc basis for as long as
  two decades. The decision of this Court in State of Kamataka
  and Ors. Vs. G. v. Chandrashekar (2009) 4 sec 342, once
  more reiterated the legal position and declared that the
  observations made by a three-Judge Bench of this Court in
E U.P. State Electricity Board Vs. Pooran Chandra Pandey and
  Ors. (2007) 11 sec 92, 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
F 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:
G
          "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
H
MD. ASHIF AND ORS. v. STATE OF BIHAR AND                 201
           ORS. [T.S. THAKUR, J.]
 accept the verdict and law laid down by coordinate and         A
 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      B
 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     c
 inasmuch as the courts at the grass roots will not be able
 to decide as to which of the judgments lay 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 · D
- 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 E
  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 F
  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 G
  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 an~ observations          H
    202      SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A         made by the two-Judge Bench in UP. 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
B         the principles laid down by the Constitution Bench."

       10. Referene;e 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, Uttaranchal
  Jal Sansthan Vs. Laxmi Devi & Ors. (2009) 7 SCC 205 where
C 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
D   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 Constitutior which
    guarantee equality of opportunity to all those who were
E   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
F   appointments had come by way of absorption of the appellants
    who were working as Voluntary Health Workers on a monthly
    honorarium of Rs.SO/- 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
G   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
H   Workers doing honorary service against the post of Primary
  MD. ASHIF AND ORS. v. STATE OF BIHAR AND                   203
             ORS. [T.S. THAKUR, J.]
Health Workers which carried a regular pay-scale and which A
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 B
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 was,
in that view of the matter, justified in declining interference with
the order of cancellation and dismissing the writ petitions.         c
     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.

B.B.B.                                     Appeals dismissed.       D