Holding

Appointments made in violation of Rule 663(d) are illegal, violate Articles 14 and 16, and are nullities, justifying termination of service.

Summary

A large number of police constables were appointed in 1990 by posting vacancies on a notice board, contrary to Rule 663(d) of the Bihar Police Manual which mandates advertisement in newspapers and through the employment exchange. When the irregularity was discovered, the Director General ordered their dismissal, which was challenged in writ petitions. The High Court treated the dismissals as terminations and upheld the order. On appeal, the Supreme Court examined whether such appointments were merely irregular or illegal, and held that appointments made in violation of recruitment rules breach Articles 14 and 16 of the Constitution, rendering them nullities; consequently, the termination of service was justified. However, the Court noted that the appellants had served for fourteen years and their cases could be considered for future appointment with relaxation of any age bar.

Issues considered

Whether appointments made in contravention of Rule 663(d) of the Bihar Police Manual are irregular or illegal
Whether such appointments violate Articles 14 and 16 of the Constitution of India
Whether the termination of service of the appointed constables is legally justified

Legislation cited

Bihar Police Manuals. Rule 663(d)
Constitution of Indias. Article 12, s. Article 14, s. Article 16

Subjects

Service lawRecruitment rulesPolice constable appointmentArticles 14 and 16Termination of serviceBihar Police ManualNullity of appointmentAge relaxation

Judgment

A NAGENDRA CHANDRA ETC. ETC.
v.
STATE OF JHARKHAND & ORS.

NOVEMBER 28, 2007
B
[B.N. AGRAWAL, TARUN CHATTERJEE AND
V.S. SIRPURKAR, JJ.]

Service Law:
c Bihar Police Manual: r. 663(d)-Termination ofservices ofPolice
Constables-On the ground that vacancies were neither advertised in
newspaper nor through Employment Exchange, but displayed on notice
Board in office of Zonal Inspector General of Police-HELD:
D Appointments made were not only in infraction of r.663(d) but also
violative of Articles 14 and 16 of the Constitution-The competent
authority was quite justified in terminating the services of the
appointees-However, their cases may be considered for future
appointment relaxing age bar-Constitution ofIndia, Articles 14 and
16.
E
A large number of Police Constables were dismissed from
service on the ground that the vacancies were neither advertised in
the newspaper nor through the Employment Exchange, as envisaged
by Rule 6(;3(d) of the Bihar Police Manual, but were displayed on
F the notice board in the office of Zonal Inspector General. The Division
Bench of the High Court ultimately upheld the decision of the
competent authority with the modification that dismissal from service
should be treated as orders of termination.

In the instant appeal filed by the Constables, the question that
G arose for determination was: Whether the appointments of the
appellants being in infraction of Rule 663(d) ofBihar Police Manual
were irregular or illegal.

Dismissing the appeal, the Court
H 008
NAGENDRACHANDRAETC.ETC. v. STATE 609

HELD: 1.1. From a bare perusal of Rule 663(d) ofBihar Police A
Manual it would be clear that the requirement of the Rule is to notify
the vacancies in newspapers and to advertise the same through
employment exchange, which, undisputedly, has not been done in the
present case as here the vacancies were notified through notice
displayed on the notice board. [Para 6) [612-F, G] B
1.2. Ifan appointment is made in infraction of the requirement
rules, the same would be violative of Articles 14 and 16 of the
Constitution and, being nullity, would be liable to be cancelled. In
the instant case, as the vacancies were not advertised in the
newspapers, the appointments made were not only in infraction of C
Rule 663(d) of the Bihar Police Manual but also violative of Articles
14and16 of the Constitution, which rendered the appointments of
the appellants as illegal; as such the competent authority was quite
justified in terminating their services and the High Court was quite
justified in upholding the same. [Para 9) [614-C, D, EJ D
Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors.,
[2006] 4 SCC 1; Ashwani Kumar & Ors. v. State of Bihar & Ors.,
[1996] 7 SCC 577; Ashwani Kumar & Ors. v. State ofBihar & Ors.,
[1997] 2 SCC 1 and National Fertilizers Ltd. & Ors. v. Somvir Singh, E
[2006] 5 sec 493, relied on.
1.3. However, in view of the fact that the appellants have
continued in service for a period of fourteen years, their cases may
be considered for future appointment and age bar, if any, may be
relaxed in relation to them. [Para 10] [614-E, F] F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5460-
5465 of 2007.
From the Judgment and Order dated 30.3.2005 of the High Court
of Jharkhand at Ranchi in W.P. Nos. 2469, 2470, 2471, 3911, 4831 and G
5697 of 2004.
Paramjit Singh Patwalia, Rudreshwar Singh, Tapesh Singh, Kumar
Ranjan, Kaushik Poddar, Gopal Kumar Jha and Sanjay Jain for the
Appellants.
H
610 SUPREME COURT REPORTS [2007] 12 S.C.R.

A P.S. Mishra, Ratan Kumar Chaudhuri, Dhruv Kumar Jha, Ravi
Chandra Prakash, Upendra Mishra and Manu Shanker Mishra for the
Respondents.
The Judgment of the Court was delivered by
B B.N. AGRAWAL, J. 1. Leave granted.
2. The appellants along with several others were appointed as
constables in the year 1990 pursuant to vacancies notified through notice
displayed on the notice board in the Office of Zonal Inspector General,
C Ranchi. Subsequently, when it transpired that the vacancies were neither
advertised through the employment exchange nor in the newspapers, the
Director General - cum - Inspector General of Police directed that all
such persons, including the appellants, be dismissed from service and
consequentially they were dismissed. Some of the constables filed writ
petitions challenging the orders of their dismissal which were quashed by
D a learned Single Judge of the High Court on the ground that the orders
were passed without giving opportunity of hearing against which the State
ofJharkhand filed letters patent appeals in the High Court. In the meantime,
the appellants also challenged their orders of dismissal by filing separate
writ petitions and their writ petitions and the letters patent appeals were
E heard together by a Division Bench and by the impugned order High Court
allowed the letters patent appeals, set aside orders of the learned Single
Judge and dismissed the writ petitions filed on behalf of the appellants
with this modification only that orders of dismissal from service should
be treated as orders of termination. Hence these appeals by special leave.
F
3. Learned counsel appearing on behalf of the appellants submitted
that though the vacancies were neither advertised through the employment
exchange nor in any newspaper, as required under Rule 663(d) of the
Bihar Police Manual, but as the same were displayed on the notice board,
G it cannot be said that there was infraction of the said Rule; as such the
services of the appellants should not have been terminated, more so when
they have continued in service for a period of fourteen years. On the other
hand, learned counsel appearing on behalf of the State of Jharkhand
submitted that as the appointments, being in infraction of Rule 663(d),
H were illegal, the competent authority was quite justified in terminating
I

NAGENDRACHANDRAETC.ETC. v. STATE 611
i [B.N.AGRAWAL,J.]
services of the appellants. A
4. In the case of Secretary. State of Karnataka & Ors., v.
Umadevi (3) & Ors., [2006] 4 SCC 1, a Constitution Bench of this Court
laid down that any appointment made in violation of recruitment rules would
be violative of Articles 14 and 16 of the Constitution of India [hereinafter
B
referred to as 'the Constitution'] rendering the same nullity, as such even
if the appointee has continued in service for a long period, he cannot be
further allowed to continue in service but if, however, it was found that
the appointment was not illegal but irregular, in that eventuality he could
be pennitted to continue in service and the same could be regularized in
case he had worked for ten years or more on duly sanctioned post. c
5. Thus, the question that falls for our consideration is as to whether
the appointments of the appellants being in infraction of Rule 663(d) of
.the Bihar Police Manual were irregular or illegal.
6. Rule 663 of the Bihar Police Manual runs thus:- D

"Selection of recruits.- (a) Strong, healthy, young men between the
ages of 19 and 27 years and who have passed secondary (i.e.,
Matriculation) examination shall be selected as recruits, as far as
possible. The standard of physical tests shall be same as given in E
Appendix 38, clause 9 for Sub-Inspectors. For scheduled castes
and tribes, the upper age-limit is up to 32 years and educational
qualification can be reduced to middle pass if matriculates are not
available. The standards of height and chest measurements are
given below. These are the minima and Superintendents should F
endeavour to get men of higher standard:-
(i) for general - height 163 centimetres and chest 80
centimetres.
,;
-
(ii) for scheduled caste and tribe - height 158 centimetres and
... chest 78 centimetres. G

Note.-In measuring the chest, the measuring tape must be applied
evenly but not tightly, its upper edge touching the lower border
of the shoulder blades, and its lower edge passing just above
the nipples, the arms hanging by the sides. The standard is the H
)-

612 SUPREME COURT REPORTS [2007) 12 S.C.R.

A minimum measurement, with the chest fully deflated. Just before
the measurement is taken the candidate shall be made to count
up to thirty, without taking breath and without hurrying.
(lii) There is no physical standard for Gurkhas, who are residents
of India and men of the best physique obtainable and at least
B literate shall be enlisted.
N.B. - Nepalese subjects cannot be enlisted.
(b) Recruits shall be measured by the reserve inspector in the
Superintendent's presence at the time of enlistment.
c
(c) The Selection Board is not precluded from selecting men over
27 years of age or, for special reasons, men beneath the standard
of measurement, but it shall do so only on good grounds. Before
enlistment the Deputy Inspector-General can give relaxation in
D height and chest by 2.5 ems. only. [See Cl. 9 of Appendix 2, Part
2).
(d) The recruitment shall be made twice a year in such a way that
recruits are ready to go to Constables Training School before the
start of the session. There shall be no necessity for training in district
E headquarters. The Superintendent shall publish notice of selection
of candidates in newspapers giving the exact number of vacancies
and also advertise through employment exchange. He shall
endeavour that selection is completed and results are laid before
the candidates the same day or on the following day so that they
F are not made to stay unnecessarily. No waiting list of candidates
beyond the number advertised except for few extramen for possible
unfitness in medical test is to be kept."
From a bare perusal of the aforesaid Rule it would be clear that the
G requirement of the Rule is to notify the vacancies in newspapers and to
advertise the same through employment exchange, which, undisputedly, .
has not been done in the present case as here the vacancies have been
notified through notice displayed on the notice board.
7. In the case of Ashwani Kumar & Ors. v. State ofBihar & Ors.,
H [1996) 7 SCC 577, large number of appointments were made by Dr.
NAGENDRACHANDRAETC.ETC. v. STATE 613
[B.N.AGRA WAL,J.]
Mallick, Deputy Director, Health Department, Government ofBihar, by A
notifying the vacancies on the notice board. When the illegality was brought
to the notice of the Government, the appointments were cancelled which
necessitated filing of writ petitions before the High Court which were
dismissed and when the matter was brought to this Court, the cases were
placed before a 2-Judge Bench consisting ofK.Ramaswamy and B.L. B
Hansaria, JJ. There was difference of opinion between the two learned
Judges. K.Ramaswamy, J. (as His Lordship then was), held that the
vacancies having been put up on the notice board, there was flagrant
breach of Articles 14 and 16 of the Constitution. Learned Judge observed
in paragraph 26 at page 594 thus:- c
"Admittedly, except putting up the vacancies on the notice board
of the Tuberculosis Centre at Patna, no advertisement inviting
applications from the open market was made nor were the names
called from the employment exchange ......The procedure adopted
by Mallick in either appointing or directing to appoint persons who D
had applied for appointment pursuant to the notification of vacancies
put up on the notice board was stage-managed by him and is in
flagrant breach of Articles 14 and 16(1) of the Constitution."
Hansaria,J., dissented from the aforesaid view expressed by E
Ramaswamy,J., and, therefore, the matter was placed before a 3-Judge
Bench - Ashwani Kumar & Ors. v. State of Bihar & Ors., [1997] 2
SCC 1 - in which order of the High Court was upheld and directions
were given, inter alia, for making appointments by publishing notice in
all the newspapers having circulation in the State of Bihar inviting F
applications for filling up the vacancies.
8. In the case of National Fertilizers Ltd & Ors. v. Somvir Singh,
[2006] 5 SCC 493, this Court was dealing with the case of recruitment
under Rule 1.5 of Recruitment and Promotion Rules which required "direct
recruitment by advertisement". The appointments were made without G
advertisement by a public sector undertaking which is State within the
meaning of Article 12 of the Constitution. Those appointed filed a writ
petition before the High Court for regularization of their services which
was allowed and their services were regularized. Challenging the said order,
when the matter was brought to this Court, the orders of regularization H
614 SUPREME COURT REPORTS [2007] 12 S.C.R.
,.
A were quashed on the ground that the initial appointments were nullities in
view of the fact that the same were in infraction of the Rules and violative
of Articles 14 and 16 of the Constitution. The Court observed in
paragraph 13 at page 497 thus:-
" ....Admittedly, no advertisement was issued in a newspaper nor
B was the employment exchange notified as regards existence of
vacancies. It is now trite law that "State" within the meaning of
Article 12 of the Constitution is bound to comply with the
constitutional requirements as adumbrated in Articles 14 and 16
thereof. When the Recruitment Rules are made, the employer would
c be bound to comply with the same. Any appointment in violation
of such Rules would render them as nullities .... "
9. In view of the foregoing discussion, we have no option but to
hold that if an appointment is made in infraction of the recruitment rules,
D the same would be violative of Articles 14 and 16 of the Constitution and
being nullity would be liable to be cancelled. In the present case, as the
vacancies were not advertised in the newspapers, the appointments made
were not only in infraction of Rule 663(d) of the Bihar Police Manual but
also violative of Articles 14 and 16 of the Constitution, which rendered
E the appointments of the appellants as illegal; as such the competent authority
was quite justified in terminating their services and the High Court, by the
impugned order, was quite justified in upholding the same.
10. In the result, the appeals fail and the same are accordingly
dismissed, but in view of the fact that the appellants have continued in
F service for a period of fourteen years, we may, however, observe that
their cases may be considered for future appointment and age bar, if any,
may be relaxed in relation to them. There shall be no order as to costs.
RP. Appeal dismissed.