Holding

Section 3(1) of the Validation Act is ultra vires and cannot validate the illegal appointments, as the legislature cannot cure a root‑level illegality that breaches Articles 14 and 16.

Summary

The Orissa Government appointed 49 junior teachers on an ad‑hoc basis in 1980‑81 without constituting a Selection Board as required by the 1979 Recruitment Rules, which mandated a member of the Orissa Public Service Commission (OPSC) as Chairman. The OPSC refused to concur with these appointments, prompting the legislature to enact the Orissa Medical Education Service (Appointment of Junior Teachers) Validation Act, 1993, deeming the appointments valid. The Orissa Administrative Tribunal and the Orissa High Court held the Validation Act ultra vires, a decision affirmed by the Supreme Court. The Court examined whether Section 3(1) of the Act could validly ‘deem’ the illegal appointments regular without correcting the underlying procedural defect, and whether such validation violated Articles 14 and 16 of the Constitution. Relying on precedents that illegal appointments cannot be regularised by mere legislative deeming, the Court declared Section 3(1) invalid and upheld the High Court’s judgment. Consequently, the appeal and related petitions were dismissed.

Issues considered

The constitutionality of Section 3(1) of the Orissa Medical Education Service (Appointment of Junior Teachers) Validation Act, 1993
Whether a legislature can validate appointments that are illegal at their root and violate Articles 14 and 16 of the Constitution
Whether a deeming clause can cure the procedural defect without repealing or amending the applicable recruitment rules

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309

Subjects

validation actillegal appointmentArticles 14 and 16service lawselection boardultra viresdeeming clauseOrissa Medical Education Serviceconstitutional lawregularisation of appointments

Judgment

SATICHIDANANDA MISHRA A
v.
STATE OF ORISSA AND ORS.

SEPTEMBER 17, 2004

[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.]
B

Service Law:

Orissa Medical Education Service (Appointment of Junior Teachers
Validation) Act, 1993-Section 3(1)-Appointment-Under repealed Rules- c
Passing of Validation Act, validating the illegal appointments-Validity of
the Act held ultra vires and inoperative by Administrative Tribunal and High
Court-On appeal, held: It is beyond the scope ofLegislature to validate such
illegal appointments as such attempt would violate Articles I 4 and I 6 of the
Constitution-Constitution ofIndia, I 950-Articles I 4 and I 6-0rissa Medical
Health Services (Recruitment and Promotion to Teaching Posts in the D
Medical Colleges) Rules, 1973-0rissa Medical Education Service
(Recruitment) Rules, 1979.

Practice and Procedure:

Plea-Raising of-For the first time before Supreme Court-Held: Not
E
permissible.

Words and Phrases:

"Validation Acts "-Meaning of F
Orissa Medical Health Services (Recruitment and Promotion to
Teaching Posts in the Medical Colleges) Rules, 1973 were framed
providing for appointment to the post of Junior Teachers. The 1973
Rules were repealed by Orissa Medical Education Service (Recruitment)
• Rules, 1979. 1979 Rules provided that Selection Board was to be G
constituted with members of State Public Service Commission as its
Chairman. Selection Board as per 1979 Rules was not constituted despite
Chair1.1an of the Public Service Commission offering himself to be ,.
.. Chairman of the Selection Board. After enforcement of 1979 Rules
applications were invited for appointment to the post of Junior Teachers. H
505
506 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A As the posts had remained vacant for long time, it was decided by State
Government to fill up the posts by ad hoc appointments without
constituting Selection Board constituted under 1979 Rules. Selection
Board constituted under the repealed Rules made selections. The
recommendations of the Selection Board were referred to the Public
B Service Commission, who refused to concur with the ad-hoc appointments.
The Commissioner also sought explanation regarding the circumstances
under which member of the Commission was not associated in the
Selection Board to which State Government did not give satisfactory
answer. Therefore, Orissa Medical Education Service (Appointment of
Junior Teachers Validation) Act, 1993 was enacted by which all the
c Junior Teachers appointed on ad-hoc basis were deemed to have been
validly and regularly appointed. Administrative Tribunal declared the
Validating Act ultra vires and inoperative and the decision was upheld
by High Court.

D In appeal, this Court issued notice limited to the validity of Section
3(1) of the Validating Act. Contempt Petition and Special Leave Petitions
were also filed.

Respondent-State contended that the appointees could be deemed
to be regularized in view of their having been in service for so many
E years; that in the present case 1973 Rules were applicable and not 1979
Rules; and that the illegal appointees could be treated to be regula:·ly
appointed by the Court.

Dismissing the appeal and disposing of the Contempt Petition and
F the Special Leave Petition, the Court

HELD: 1. All the appointments were wholly illegal. They were
not in accordance with Orissa Medical Education Service (Recruitment)
Rules, 1979. The Selection Board was not constituted in terms
required by the 1979 Rules which stipulates a meinber of State Public
G Service Commission to be the Chairman of the Selection Board. The
Public Service Commission declined to concur with the illegal
appointments. [512-D]

R.N. Nanjundappa v. T. Thimmiah and Anr. [1972) 1 SCC 409, relied
H on.
SATICHIDANANDA MISHRA v. STATE 507

2. This is an illegality which strikes at the root of the appointment A
and, therefore, it is beyond the scope of the Legislature to validate such
illegal appointments as any such attempt would violate Articles 14 and
16 of the Constitution. The ground that Public Service Commission
failed to appoint a member as the Chairman of the Selection Board in
accordance with 1979 Rules and in the light of the urgency to fill up the B
vacancies, the said vacancies were filled up by the Selection Board
constituted under Orissa Medical Health Services (Recruitment and
Promotion to Teaching Posts in the Medical Colleges) Rules, 1973 does
not appear to be correct. The facts on record show a contrary position.
It seems that the State Government wanted to bypass the State Public
Service Commission. [513-B, C, A) c
State of Orissa and Anr. v. Gopal Chandra Rath and Ors., (1995) 6
SCC 242; Shri Prithvi Cotton Mills Ltd and Anr. v. Broach Borough
Municipality and Ors., [1969) 2 SCC 283; Vijay Mills Company Limited
and Ors. v. State of Gujarat and Ors., (1993) 1 SCC 345 and I.N. Saksena
v. State of Madhya Pradesh, [1976) 4 SCC 750, distinguished.
D
3. Section 3(1) of Orissa Medical Education Service (Appointment
of Junior Teachers) Validation Act, 1993 amounts to deeming of a legal
position without deeming of a fact. The legal consequences of
appointments being regular has been deemed without deeming facts E
either of repealing 1979 Rules and making 1973 Rules operative or
changing the basis, namely, definition of Selection of Board. In this
view Section 3(1) is held invalid. (517-D, 518-D]

Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan and Ors.,
(1996] 2 sec 449, relied on. F
4. The validity of the Validating Act is further assailed on the
ground that it by mere declaration validates the invalid appointments
without removing the basis of invalidity of the appointments made. The
purpose of a Validating Act is to remove the cause of ineffectiveness or
invalidity. A Validating Act presupposes a positive act, on the part of G
the legislature, of removing the cause of ineffectiveness or invalidity.
[518-E, G, H]

Hari Singh and Ors. v. The Military Estate Officer and Anr., (197212
SCC 239 and ITW Signode India Limited v. Collector of Central Excise, H
508 SUPREME COURT REPORTS {2004] SUPP. 4 S.C.R.

A (20041 3 sec 48, referred to.

Black's Law Dictionary 7th Edition page No. 1421, referred to.

5. The appointees cannot be deemed to be regularized in view of
their having been in service for so many years. Right from the beginning
B Public Service Commission has been objecting to the stlection. The State
Government for the reasons best known to it was not interested in
constituting a Selection Board with a member of Public Service
Commission as its Chairman which was the requirement of the 1979
Rules. (513..;G, H; 514-A)
c
Narendra Chadha and Ors. v. Union.of India and Ors., (1986) 2 SCC
157, distinguished.

6. The contention that 1973 ·Rules will be applicable and not 1979
Rules cannot be permitted to be urged since it was not urged earlier and
D
is sought to be put forth for the first time during the course of hearing.
Further, the advertisement was issued after 1979 Rules had been
enforced. In fact, in terms of 1979 Rules, the State Government desired
Public Service Commission to regularize the illegal appointments. Since
Public Service Commission did not concur, the validating statute was
E enacted~ [516-E, F)

B.L. Gupta and Anr. v. MC.D., (1998) 9 SCC 223, distinguished.

7. Though this Court has ample powers.in a given case to direct
regularization of illegal and unsupportable appointments if the justice
F
of any particular case so demands, but it cannot_ be taken as a rule of
general application to perpetuate illegalities. Such a· course is to be
resorted to in exceptional circumstances. Present case does not fall in
that category. The Public Service Commission was sought to be
deliberately bypassed. There are no equities in favour of-appellant who
G cannot be placed on a higher pedestal over those who were selected by
Public Service Commission and stood the test of merit, became successful
and were appointed as per relevant Rules. [517-B, C)

H.C. Puttaswamy and Ors. v. The Hon'ble Chief Justice of Karnataka
H High Court, Bangalore and Ors., (1991) Supp. 2 SCC 42, distinguished.
SATICHIDANANDA MISHRA v. STATE [SABHARWAL, J.] 509
......
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8039 of2003. A
From the Judgment and Order dated 6.8.2001 of the Orissa High Court
in O.J.C. No. 17607 of 1998.

WITH
B
C.A. Nos. 8058-8059, 8061-8062, 8063, 8064, 8065, 8066/2003,
C.P.(C) No. 419/2002, C.A. Nos. 8060/2003, 3015-16/2004 and S.L.P. (C)
Nos. 13861-13862 of 2004.

Devender Singh, Abani K. Sahu, Ghanshyam, Dr. Sushil Balwada for
the Appellants in C.A. Nos. 8039, 8063, 806~ and 8066/2003.
c
P.N. Misra, S.Misra, Ram Patnaik, Abhijit Sengupta for the Appellants
in C.A. Nos. 8059-8062/2003.

B. Sridhar, K. Ram Kumar for the Appellant in C.A. No. 8058/2003.
D
Jitender Mohapatra, Ajay Sharma for the Appellant in C.A. No. 8065/
2003.

Y. Prabhakara Rao for the Appellants/Petitioner in C.A. Nos. 3015-16/
2004 & S.L.P. (C) Nos. 13861-62/2004.
E
B.R. Sarangi and M.A. Chinnasamy for the Petitioner in C.P.(C) No.
419/2002 and Respondents in C.A. Nos. 8039, 8061-62, 8063, 8065/2003.

V.A. Mohta for Respondent No. 4.

Janaranjan Das, Swetaketu Mishra, Ms. Moushumi · Gahlot for the
F
Respondent for State.

Ms. Kirti Mishra for Respondent in OPSC.

Sushil Kumar Jain, A.P. Dhamija, Ms. Ruchi Kohli, H.D. Thanvi, Ram G
Niwas, Sharad Singhania, Mrs. Pratibha Jain for the Respondents. in C.A. No.
8060-62/2003.

Ms. Meenakshi Arora for the Respondent in C.A. No. 8059/2003.

Randhir Singh Jain (NP) for the Respondent No. 8066/2003. H
510 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A The Judgment of the Court was delivered by

Y.K. SABHARW AL, J. : The present appeal by special leave is
directed against the judgment dated 6th August, 2001 passed by the Orissa
High Court declining to set aside order of Orissa Administrative Tribunal
whereby Orissa Medical Education Service (Appointment of Junior Teachers
B
Validation) Act, 1993 (for short, 'the Validating Act') has been ddared as
ultra vires the Constitution of India. The factual background which gives
rise to the ·present controversy is narrated as follows.

On 24th September, 1973, the Orissa Medical Health Services
C (Recruitment and Promotion to Teaching Posts in the Medical Colleges)
Rules, 1973 (hereinafter referred to as the '1973 Rules') were framed under
proviso to Article 309 of the Constitution. These Rules provided that
appointment to the posts of Junior Teachers shall be made through a Selection
Board by recruitment from amongst the Assistant Surgeons with at least one
year's experience as such, in consultation with the Orissa Public Service
D Commission (hereinafter referred to as 'OPSC'). Rtile 3(f) defined 'Selection
Board' to mean a Selection Board appointed by the State Government to
select persons for appointment to the Junior or Senior teaching posts and shall
consist of the Principals of Medical Colleges in the State and such others as
may be nominated by the Government. The 1973 Rules came to be repealed
E by another set of Rules dated 13th August, 1979 made under proviso to <,

Article 309 of the Constitution, called 'The Orissa Medical Education Service
(Recruitment) Rules, 1979 (for short, '1979 Rules'). Under these Rules, vi de
sub-rule (2) of Rule 4, minimum qualification of postgraduate degree in the
concerned specialty or any other equivalent degree or qualification as
prescribed by the Council was provided for appointment of Junior Teachers.
F
Rule 3(f) provided that Selection Board was to be constituted with member
of the OPSC as its Chairman. The Secretary to Government in the Health
and Family Welfare Department, DHET and Principals of the Medical
Colleges were to be its members. On 20th September, 1979, the Director of
Medical Education and Training (DMET) issued advertisement-inviting
G applications from eligible candidates for appointment as Junior Teachers in
various disciplines/specialties. The Selection Board as per 1979 was, however,
never constituted. According to Government, as many posts of Junior
Teachers remained vacant for long time, the Chief Minister passed orders on
27th January, 1980 to fill up those posts by ad hoc appointments without
constituting a Selection Board under 1979 Rules. Despite 1973 Rules having
H
- SATICHIDANANDA MISHRA v. STATE [SABHARWAL, J.] 511

been repealed, the Selection Board appointed on 3rd August, 1979 under the
repealed Rules was allowed to make.the selections. After obtaining orders
of the Chief Minister on 4th August, 1980, orders were issued by the State
A

Government to the selected candidates appointing them as Junior Teachers
on ad hoc basis. Some appointments were also made on 11th November,
1980. In all, 49 candidates came to be appointed as Junior Teachers on ad
hoc basis by the Government. On 9th February, 1982, the recommendations
B
of the Selection Board constituted under the 1973 Rules, were referred to the
OPSC along with the entire list of 145 candidates who had applied for the
post pursuant to the advertisement dated 20th September, 1979. The OPSC
refused to concur with the ad hoc appointments of these 49 Junior Teachers.
This led to the enactment of the Validating Act by which all the 49 Junior c
teachers appointed on ad hoc basis by the Government were deemed to have
been validly and regularly appointed in the service from the date of their
appointment as such.

The Administrative Tribunal by its order dated 30th November, 1998
declared the Validating Act ultra vires and inoperative. The decision of the D
Tribunal has been upheld by the Division Bench of the Orissa High Court
by the impugned judgment.

In the aforenoticed background, primary issue which comes up for our
consideration is about the validity of the Validating Act. It would be useful E
to reproduce sub-sections (1) and (2) of Section 3 of the Validating Act,
which read as under:-

" Sec.3 (1) Notwithstanding anything contained in the Recruitment
Rules 49 Junior Teachers appointed on ad hoc basis by the
Government of Orissa from out of the regularly recruited Assistant F
Surgeons and posted in Medical Colleges of the State during the
years 1980 and 1981 and are continuing as such on the date of
commencement of this Act, shall, for all intends and purposes, be
deemed to have been validly and regularly appointed in the service
froll} the date of their appointment as such and no such appointment G
shall be challenged in any court of law merely on the ground that
such appointments were made otherwise than in accordance with the
procedure laid down in the Recruitment Rules.

Sec.3 (2) The inter se seniority of the Junior Teachers whose
appointments are so validated under Sub Section (1) shall be H
512 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A detennined on the basis of their respective date of appointment as
....
such."

On 29th November, 2001, while issuing notice, this Court declined to
interfere with the order to the extent it struck down Section 3(2) of the
Validating Act and only issued limited notice concerning the validity of
B Section 3(1 ). Thus the only question that has been urged by learned counsel
is about the validity of Section 3(1).

In the objects and reasons of the Validating Act, it has been stated that
OPSC has turned down the panel of 49 Junior Teachers and if their services
c are tenninated they would face extreme financial hardship,s besides the
State's vacancies position. The Act has been brought to validate these
appointments as there is no scope to regularise theii- services within the
framework of 1979 Rules.

Clearly, all the appointments were wholly illegal. They were not in
D accordance with 1979 Rules. The Selection Board was not constituted. in
tenns required by the 1979 Rules which stipulates a member of OPSC to be
the Chairman of the Selection Board. The OPSC declined to concur with
the illegal appointments. The question is whether such appointments stood
regularised on enactment of the Validating Act under consideration.
E
In RN Nanjundappa v. T. ThimmiahandAnr., [1972) 1 SCC409, this
Court held that "If the appointment itself is in infraction of the rules or if
it is in violation of the provisions of the Constitution illegality cannot be
regularized. Ratification or regularization is possible of an act which is within
the power and province of the authority but there has been some non
F compliance with procedure or manner which does not go to the root of the
appointment."

It would be pertinent to note here that the irregularity in the appointment
in the above mentioned case was sought to be regularised by way of a Rule
made under proviso to Article 309 of the Constitution. The above observations
G
were made in that context. In the present case the appointments are sought
to be regularised by way of an Act of Legislature. In our view the safeguards
mentioned above would alsc be applicable in cases where the appointments
are sought to be regularised by way of an Act of the Legislature.·

H It is an admitted position .that the provisions of 1979 Rules were not
SATICH~ANANDA MISHRA v. STATE [SABHARWAL, J.] 513

followed and the appointments made in 1980 were after the said Rules had A
been enforced. It seems that the State Government wanted to bypass the
OPSC. The Selection Board comprising of a member of OPSC as its
Chairman was never constituted, and the selections were sought to be made
by the Board constituted under the 1973 Rules. This, in our opinion, is an
illegality which strikes at the root of the appointment and, therefore, it is
B
beyond the scope of the Legislature to validate such illegal appointments as
any such attempt would violate Articles 14 and 16 of the Constitution. It
may also be noted that the ground that OPSC failed to appoint a member as
the Chairman of the Selection Board in accordance with 1979 Rules and in
the light of the urgency to fill up the vacancies, the said vacancies were filled
up by the Selection Board constituted under the 1973 Rules, does not appear c
to be correct. The facts on record show a contrary position. By a letter dated
4th September, 1979, the Chairman of the OPSC had offered himself to be
the Chairman of the Selection Board but no Selection Board was constituted
under the 1979 Rules. A clarification in this regard was sought by OPSC
by its letter dated 24th March, 1982 wherein the OPSC had specifically D
sought for an explanation in regard to the circumstances under which a
member of the OPSC was not associated in the Selection Board meetings held
on 04th July, 1980 and 10th November, 1980. In reply dated 20th September,
1982 to the above letter, the Secretary to the Government of Orissa, Health
and Family Welfare Department did not clarify the abovementioned query
and vaguely stated that : E

"A large number of Junior Teaching posts in different discipline
were lying vacant in the three Medical Colleges and their attached
hospitals of the State. In the interest of teaching it was considered
absolutely necessary to fill up the said posts on ad hoc basis
F
immediately. As such it was decided to fill up the available
vacancies by way of ad hoc appointments after screening the bio
data of the eligible candidates at the Government level".

Mr. Misra contended that 49 Junior Teachers appointed in the year 1980
may be deemed to be regularised, they having been in service for so many G
, years. Before we examine the decision in Narender Chadha and Ors. v.
Union of India and Ors., [ 1986] 2 SCC 157, relied upon by
Mr. Misra, it may be noted that right from the beginning OPSC has been
objecting to the selection. The State Government for the reasons best known
to it was not interested in constituting a Selection Board with a member of
H
514 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A OPSC as its Chairman which was the requirement of the 1979 Rules. In
Narender Chadha 's case the question that came up for consideration was
altogether different, namely, the determination of seniority between the
promotees and the direct recruits. Under Rule 8 (1) (a) (ii) of the Rules under
consideration in the said case, the quota of the promotees was restricted to
B 25 per cent. The fact that the petitioners were not promoted by following
the actual procedure prescribed under Rule 8 (1) (a) (ii) was accepted but
this Court observed with the fact remained that they had been working in the
posts for number of years; appointments were made in the name of the
President by the competent authority; they have been continuously holding
these posts; they were paid all along the salaries and the allowances payable
c to the incumbents of such posts and had not been asked to go back to the
posts from which they were promoted at any time since the dates of their
appointments and the order of promotion issued in some cases showed that
they were promoted in the direct line of their promotions and, therefore, this
Court came to the conclusion that it was idle to contend that the petitioners
D are not holding the posts in Grade IV of the two services in question and
further it would be unjust at this distance of time on the facts and in the
circumstances of the case before the Court, to hold that the petitioners are
not holding the posts in Grade IV. The Court, however, added a note of
caution by observing that it is not a view of the Court that"whenever a person
is appointed in a post without following the rules prescribed for appointment
E to that post, he should be treated as a person regularly appointed to that post.
In the present case, we are considering the validity of the appointments that
were admittedly made without following 1979 Rules. The decision in
Narender Chadha 's case was rendered having regard to the factual scenario
in that case. It cannot be pressed into service to support entirely illegal
F appointments.

Reliance has also been placed by learned counsel to Para 7 of the
decision in State of Orissa and Anr. v. Gopal Chandra Rath and Others,
[1995] 6 SCC 242, holding that the Validation Act has removed the lacuna
by changing the definition of the Selection Committee and consequently
G validating the appointments made by such committee during the period in
question. In the said case, the basis for illegality pointed out by this Court
was changed by Validating Act. It was held that it is too well settled that
the legislature has the power to validate an Act by removing the infirmity
indicated in any judgment and that too also retrospectively but they cannot
H merely set aside, annul or override a judgment of the Court. The infirmity
SATICHIDANANDA MISHRA v. STATEJSABHARWAL, J.] 515

pointed out by the Court therein was to the effect that the Selection A
Committee had not been appointed by the State Government as required
under the Rules and, therefore, the process of selection was vitiated. The
Validating Act changed the definition of the Selection Committee unlike the
case in hand. The decision renders no assistance in the presept case.

In celebrated Constitution Bench decision in th~ case of Shri Prithvi
B
Cotton Mills Ltd. and Another v. Broach Borough Municipality and Others
[1969] 2 sec 283, th~ principles about validating statues were laid down.
It was held that if the legislature has the power over the subject-matter and
competence to make a valid law, it can at any time make such a valid law
and make it retrospectively so as to bind even past transaction. The validity c
of a Validating Law, therefore, depends upon whether the Legislature
possesses the competence which it claims over the subject-matter and
whether in making the validation it removes the defect which the courts had
found in the existing law and makes adequate provisions in the Validating
Law for a valid imposition of the tax. In the present case, this decision cited
D
by Mr. Misra will have no application since neither the question of
competence to make a valid law is in issue nor is there any question about
removal of defect pointed out by the Court.

The question here is about the validity of the validating statute seeking
-~
to regularise illegal appointments without either repealing 1979 Rules or E
changing the definition of the Selection Board. Learned counsel for the
appellant has also placed reliance on the decision in the case of Vijay .-.fills
Company Limited and Ors. v. State of Gujarat and Ors., [1993] l SCC 345.
The Court referred to various decisions which considered the law of
validation generally including the decision in the case of Prithvi Cotton Mills
F
(supra). The conclusions have been set out in Para 18 that there are different
modes of validating the provisions of the Act retrospectively, depending upon
the intention of the Legislature in that behalf. Where the Legislature intends
that the provisions of the Act themselves should be deemed to have been in
existence from a particular date in the past and thus to validate the actions
taken in the past as if the provisions concerned were in existence from the G
ea~lier date, the Legislature makes the said intention clear by the specific
language of the Validating Act. It is open for the Legislature to change the
very basis of the provisions retrospectively and to validate the actions on the
changed basis. In the said case, it was held that the Legislature had changed
the very basis of the provisions retrospectively as· was apparent from the
H
516 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A provisions of the Amending Act. In the present case as already noticed, the
validating statute has done nothing of the kind and only sought to regularise
illegal appointments without repealing the rules that were applicable at the
relevant time or amending the definition of the Selection Board with
retrospective effect.
B Reliance was also placed by Mr. Misra on Para 32 of the decision in
the case of J.N. Saksena v. State of Madhya Pradesh, [1976] 4 SCC 750,
holding that the State Legislature had legislative competence not only to
change the service conditions of the State civil servants with retrospective
effect but also to validate with retrospective force invalid executive orders
c retiring the servant_s, because such validating legislation must be regarded
as subsidiary or ancillary to the power of legislation on the subject covered
by Entry 41.

We are unable to see the relevance on the aforesaid decision for the
present purpose. As already stated, no one has questioned here the legislative
D competence to change the service conditions of State civil servants with
retrospective effect. The question is whether the change has been effected
at all. We have already noted that the legislation did not effect any change.
It only states that irregular appointments will be legal. The basis of illegality
has not at all been changed by the legislation.
E It was also contended that 1973 Rules will be applicable and not 1979
Rules. We cannot permit the appellants to urge this point since it was not
urged earlier and is sought to be put forth for the first time during the course
of hearing. Further, as already noted, the advertisement was issued after 1979
Rules had been enforced. In fact, in terms of 1979 Rules, the State
F Government desired OPSC to regularise the illegal appointments. Since
OPSC did not concur, the validating statute was enacted. Reliance placed
on B.L. Gupta and Anr. v. MC.D., [1998] 9 SCC 223, for the proposition
that 1973 Rules will be applicable and not 1979 Rules is misplaced. The
said decision is not relevant on the issue of constitution of Selection Board
G as per requirements of 1979 Rules.

Drawing support from the observation made in H C. Puttaswamy and
Ors. v. The Hon 'ble Chief Justice of Karnataka High Court, Bangalore and
Ors., [1991] Supp. 2 SCC 421, it was contended that the illegal appointees
can also be treated to be regularly appointed. In the relied upon decision,
H this Court, after having reached the conclusion about the invalidity of the
SATICHIDANANDA MISHRA v. STATE [SABHARWAL, J.] 517

impugned appointments made by the Chief Justice, but, having regard to the A
circumstances of the case, since the consequence would have been to uproot
the employees, adopted a humanitarian approach and held on facts that
appointees deserved mercy. True, this Court has ample powers in a given
case to direct regularisation of illegal and unsupportable appointments, if the
justice of any particular case so demands but it cannot be taken as a rule of B
general application to perpetuate illegalities. Such a course is to be resorted
to in exceptional circumstances. We do not think that the present case falls
in that category. The OPSC was sought to be deliberately bypassed. There
are no equities in favour of appellant who cannot be placed on a higher
pedestal over those who were selected by OPSC and stood the test of merits,
became successful and were appointed as per relevant Rules. We may also C
note that on 4th October, 1982, 1979 Rules were amended and selection
through Selection Board was done away with and it was prescribed that the
selection shall be made through OPSC.

We may further note that Section 3(1) amounts to deeming of a legal
position without deeming of a fact. It was observed in the case of Delhi Cloth D
and General Mills Co. ltd. v. State of Rajasthan & Ors., [1996] 2 SCC 449
that "a legal consequence cannot be deemed nor, therefrom, can the events
that should have preceded it. Facts may be deemed and, therefrom, the legal
consequences that follow." In this case the procedure as prescribed under
Sections 4 to 7 of Rajasthan Municipalities Act, 1959, for inclusion of the E
villages of Raipura and Ummedganj in Kota Municipality was not followed.
Under the Courts order and Judgment, Kota Municipality was restrained fr0.n
imposing tax on the petitioner Company, which was situated in the said
villages, on the ground that the said villages were not validly included in the
Kota Municipality. Sections 4 to 7 of the Rajasthan Municipalities Act, 1959
remained on statute book unamended when the Kota Municipal Limits
F
(Continued Existence) Validating Act, 1975 was passed. Section 3 of the
Validating Act provided that:-

"Notwithstanding anything contained in Sections 4 to 7 of the 1959
Act or in any judgment, decree, order or direction of any court, the
G
villages of Raipura and Ummedganj should be deemed always to
have continued to exist and they continue to exist within the limits
of the Kota Municipality, to all intents and for all purposes".

The validity of the Validating Act was in question. This Court observed
. '
that "the Validating Act provides that, notwithstanding anything contained H
518 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A in Sections 4 to 7 of 1959 Act or in any judgment, decr~e, order or direction
of any court, the villages of Raipura and Ummedganj should be deemed
always to have continued to exist and they continue to exist within the limits
of the Kota Municipality, to all intents and for all purposes. Tbis provision
requires the deeming of the legal position that the villages of Raipura and
Ummedganj fall within the limits of the Kota Municipality, not the deeming
B of facts from which this legal consequence would flow. A legal consequence
cannot be deemed nor, therefrom, can the events that should have preceded
it. Facts may be deemed and, therefrom, the legal consequences that follow. "
(Emphasis supplied). For the reasons and on the ground that the Validating
Act did not cure the defect leading to the invalidity of the inclusion of the '"
C said villages in Kota Municipality, the validating Act was held to be invalid.

The deeming clause in the present case is to the same effect as that of
the above mentioned case. The legal consequences of appointments being
regular has been ds:emed without deeming facts either of repealing 1979
Rules and making 1973 Rules operative or changing the basis, namely,
D
definition of Selection of Board. In this view, we have no hesitation in
holding that Section 3(1) has to meet the same fate as was met by Validating
statute in Delhi Cloth Mills case.

The validity of the Validating Act is further assailed on the ground that
E it by mere declaration validates the invalid appointments without removing
the basis of invalidity of the appointments made. Black's Law Dictionary (7th
Edition, Page no.1421) defines Validation Acts as "a law thatjs amended
either to remove errors or to add provisions to confirm to constitlltional
requirements". In the case of Hari Singh & Ors. v. The Military Estate
Officer & Anr., [ 1972) 2 SCC 239 the Supreme Court held that "The meaning
F
of a Validating Act is to remove the causes for ineffectiveness or invalidating
of actions or proceedings, which are validated by a legislative measure". The
Supreme Court in the case of ITW Signode India Limited v. Collector of
Central Excise, [2004) 3 SCC 48 observed that "A Validation Act removes
actual or possible voidness, disability or other defect by confirming the
G validity of anything, which is or may be invalid."

The purpose of a Validating Act is to remove the cause of ineffectiveness
or invalidity. A Validating Act presupposes a positive act, on the part of the ·~
legislature, of removing the cause of ineffectiveness or invalidity. In the
H present case nothing has been done.
SATICHIDANANDA MISHRA v. STATE [SABHARWAl, J.] 519

Before concluding, we may notice another aspect that was pointed out A
by learned counsel. The Tribunal in its order observed that rightly or
wrongly, Dr. K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been
promoted to the higher rank since a long time and they have been holding
such higher position on the basis of the recommendation of the OPSC and
in such circumstances, it would be unjust to pass any orders to disturb them
B
from their present positions. Learned counsel for Dr. Satchidananda Misra
contended that the High Court has not disturbed the aforesaid directions of
the Tribunal. On the other hand, learned counsel for Dr. Rama Raman Saranji
(Respondent No. 4 in CA No. 8039/03) contended that the writ petition filed
by his client challenging the aforesaid direction of the Tribunal is pending
before the High Court. In this view, on this aspect, we express no opinion c
leaving it to be decided by the High Court in accordance with law.

In the light of the above discussion, the judgment and order of the Orissa
High Court is upheld and accordingly the appeals are dismissed but leaving
the parties to bear their own costs. The contempt petition and Special Leave
Petitions are also disposed of in terms of this judgment.
D

K.K.T. Appeals dismissed/Petitions diposed of.