THE STATE OF BIHAR AND ORS.versusKIRTI NARAYAN PRASAD

                         [2018] 14 S.C.R. 403                                403


                 THE STATE OF BIHAR AND ORS.                                 A
                                    v.
                    KIRTI NARAYAN PRASAD
                    (Civil Appeal No. 8649 of 2018)
                        NOVEMBER 30, 2018                                    B
        [MADAN B. LOKUR, S. ABDUL NAZEER AND
                  DEEPAK GUPTA, JJ.]
       Service Law – Appointments – Legality of – Writ petitioners
before High Court had joined the service of State of Bihar under             C
the orders made by the concerned Civil Surgeon-cum-Chief Medical
Officer of the district – It was alleged that none of the writ petitioners
was appointed through a proper legal recruitment process – The
State Government having found that large number of appointments
were made on the basis of false or forged documents, without
following due process of recruitment and mostly without the                  D
appointment orders, cancelled such appointments and the concerned
incumbents were discharged from service – Writ petitions before the
High Court with specific prayer to regularize service and to set
aside the order of termination of services – Allowed by the High
Court – On appeal, held: The writ petitioners were the beneficiaries         E
of illegal orders made by the Civil-cum-Chief Medical Officer –
They were given notice to establish the genuineness of their
appointment and to show cause – None of them were able to establish
the genuineness or legality of their appointment before the State
Committee – The State Committee on appreciation of the materials
on record had opined that their appointment was illegal and void             F
ab initio – There were no grounds to disagree with the said finding
of the State Committee – In the circumstances, the question of
regularisation of their services did not arise, since the appointment
of the petitioners was ab initio void, they were not the civil servants
of the State.                                                                G
      Disposing of the matters, the Court
     HELD: In the instant cases, the writ petitioners have filed
the petitions before the High Court with a specific prayer to

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                                   403
404                SUPREME COURT REPORTS                  [2018] 14 S.C.R.


A     regularize their service and to set aside the order of termination
      of their services. They have also challenged the report submitted
      by the State Committee. The real controversy is whether the
      writ petitioners were legally and validly appointed. The finding
      of the State Committee is that many writ petitioners had secured
      appointment by producing fake or forged appointment letter or
B
      had been inducted in Government service surreptitiously by
      concerned Civil Surgeon-cum-Chief Medical Officer by issuing a
      posting order. The writ petitioners are the beneficiaries of illegal
      orders made by the Civil Surgeon-cum-Chief Medical Officer.
      They were given notice to establish the genuineness of their
C     appointment and to show cause. None of them could establish
      the genuineness or legality of their appointment before the State
      Committee. The State Committee on appreciation of the materials
      on record has opined that their appointment was illegal and void
      ab initio. There is no ground to disagree with the finding of the
      State Committee. In the circumstances, the question of
D
      regularisation of their services by invoking of the judgment in
      Umadevi does not arise. Since the appointment of the petitioners
      is ab initio void, they cannot be said to be the civil servants of the
      State. Therefore, holding disciplinary proceedings envisaged by
      Article 311 of the Constitution or under any other disciplinary
E     rules shall not arise. [Para 17][413-E-H; 414-A]
            Secretary, State of Karnataka and others v. Umadevi
            (3) and others (2006) 4 SCC 1 : [2006] 3 SCR 953 ;
            State of Orissa and Anr. v. Mamata Mohanty (2011) 3
            SCC 436 : [2011] 2 SCR 704 – relied on.
F           State of Karnataka and others v. M.L. Kesari and others
            (2010) 9 SCC 24 ; State of Bihar v. Purendra Sulan Kit
            2006 (3) PLJR 386 – referred to.
                             Case Law Reference

G     [2006] 3 SCR 953                relied on                  Para 1
      (2010) 9 SCC 24                 referred to                Para 1
      [2011] 2 SCR 704                relied on                  Para 6


H
THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD 405


       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8649                     A
of 2018.
       From the Judgment and Order dated 12.07.2011 of the High Court
of Judicature at Patna in LPA No. 1523 of 2010.
                                     With
       Civil Appeal Nos. 8697, 8698, 8699, 8700, 8701, 8702, 8703, 8704,        B
8705, 8650, 8651, 8652, 8654, 8706, 8655, 8668, 8707, 8670, 8673,
8674-8676, 8677, 8678, 8661, 8656, 8657, 8658, 8659, 8660, 8683, 8684,
8662, 8663, 8665, 8666, 8687, 8688, 8689, 8690, 8691, 8692, 8693, 8696,
10049-10050 of 2018.
       Ranjit Kumar, Sr. Adv., Gopal Singh, Manish Kumar, Ms. Aprajita          C
Sud, Kumar Milind, Rajiv Kumar, D. P. Mohanty, Rameshwar Prasad
Goyal, Navin Prakash, Ms. Meetu Singh, A. K. Yadav, L. R. Rath,
Ms. Rumi Chandra, K. V. Mohan, Manu Shanker Mishra, Abhijat P.
Medh, Ashish Kumar Das, Parmanand Gaur, Dr. Kailash Chand,
Ms. Sandhya Tiwary, Ashok Kumar Tiwary, V. N. Raghupathy, Kedar
Nath Tripathy, Gaurav Agrawal, Ms. Monica Hareja, Ms. Rashmi                    D
Nandkumar, Sandeep Das, Ms. Surbhi Sharma, Ms. Pratishtha Vij,
Abhinav Mukerji, Ms. Bihu Sharma, Ms. Purnima Krishna, Ms. Asha
Upadhyay, Awdhesh Kumar Singh, J. P. Tripathi, Braham Singh,
Rohit Vidhudi, R. D. Upadhyay, Rajiv Shankar Dvivedi, Rajesh Prasad
Singh, Advs. for the appearing parties.                                         E
       The Judgment of the Court was delivered by
       S. ABDUL NAZEER, J.
       1. Some of the appeals out of the aforesaid group of matters have
been filed by the State of Bihar challenging the order of the High Court
of Judicature at Patna, whereby the Division Bench has confirmed the            F
order of the learned Single Judge directing reinstatement of the writ
petitioners therein on their respective posts with all consequential benefits
in terms of the order dated 6.10.2009 in CWJC No. 6575 of 2009 and
analogous cases. In CWJC No. 6575 of 2009 and other connected
matters, learned Single Judge while allowing writ petitions has directed
                                                                                G
reinstatement of the writ petitioners therein from the date of their
termination on the post, they were working with all consequential benefits.
The Letter Patent Appeals filed by the State of Bihar challenging the
said order have been dismissed by the Division Bench of the High Court
holding that the writ petitioners have been working continuously for more
than ten years without protection of any interim orders of the Court and        H
406                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A     Tribunal. It was further held that in view of the Constitution Bench
      judgment of this Court in Secretary, State of Karnataka and others
      v. Umadevi (3) and others, 2006 (4) SCC 1 and in State of Karnataka
      and others v. M.L. Kesari and others, 2010 (9) SCC 247, the
      termination order issued against the writ petitioners cannot be said to be
      legal. Accordingly, LPAs have been dismissed. These orders have also
B
      been challenged by the State of Bihar in this group of appeals.
             2. In the other connected matters, the Division Bench of the Patna
      High Court has allowed the LPAs and the writ petitions filed by the
      petitioners therein have been dismissed holding their appointment as non
      est and void ab initio.
C
             3. Since a common issue has been raised in all these appeals, they
      are disposed of by this common judgment.
            4. The facts of the cases in brief are as under:
              5. The writ petitioners had joined the service of State of Bihar
D     under the orders made by the concerned Civil Surgeon-cum-Chief
      Medical Officer of the district. None of the writ petitioners was appointed
      through a proper legal recruitment process. They were posted in Class
      III or Class IV service in a primary health centre within the jurisdiction
      of the civil surgeon. The State Government having realised the large
E     scale irregularities committed in the appointment by the concerned Civil
      Surgeon-cum-Chief Medical Officer, scrutinized all the appointments.
      The State Government having found that large number of appointments
      were made on the basis of false or forged documents, without following
      due process of recruitment and mostly without the appointment orders,
      cancelled such appointments and the concerned incumbents were
F     discharged from service. Those orders of discharge were challenged
      before the Patna High Court. The High Court by a common judgment
      and order set aside the impugned orders of discharge from service solely
      on the ground of violation of the principles of natural justice. All the writ
      petitioners were directed to be reinstated in service without the salary or
      remuneration for the interregnum period.
G
            6. Thereafter, the State Government initiated proceedings to
      terminate the services of such employees by issuing show cause notice
      and calling upon each of them to establish legality of their respective
      appointment. The writ petitioners failed to establish the legality of their
      appointment. Once again their services were terminated. Feeling
H     aggrieved, the writ petitioners challenged the said orders before the High
THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD 407
                [S. ABDUL NAZEER, J.]

Court, which eventually reached the Division Bench in Letter Patent             A
Appeals. The Division Bench noticed that the writ petitioners were
appointed in Class III or Class IV service and were serving as such for
a long time. They had claimed the benefit of regularisation in service.
In view of the judgment of this Court in Umadevi (supra), the Division
Bench in State of Bihar v. Purendra Sulan Kit, reported in 2006 (3)
                                                                                B
PLJR 386, directed the State Government to find out which of the
affected employees are entitled for regularisation. The direction of the
Division Bench is as under:
        “All the Letters Patent Appeals whether preferred by the State
        or by affected employees and all the Writ Petitions preferred by
        the affected employees are hereby disposed of by this common            C
        judgment and order with a direction to the authorities of the Health
        Department, Government of Bihar to reconsider the cases of all
        the affected employees with a view to find out on the basis of
        relevant facts and law as settled by the Constitution Bench in the
        case of Secretary, State of Karnataka vs. Uma Devi (supra)              D
        as to which of such affected employees are fit for regularisation
        in terms of that judgment, particularly in terms of paragraph 44 of
        the judgment. Such exercise should be completed within a period
        of six months from today. If for any good reason, the time period
        is required to be extended then the respondent State must file an
        application for that purpose and seek extension from this Court.        E
        Till the process is completed, the State of Bihar and its authorities
        shall maintain status quo in respect of services of the affected
        employees as existing on date. The status quo shall get revised
        by the orders that may be passed by the authorities in respect of
        affected employees as a result of the exercise to be undertaken         F
        by them and their final decision in the light of this judgment and
        order.”
        7. Pursuant to the aforesaid directions, the State Government
constituted a committee comprising of five officers (for short ‘State
Committee’) to examine the facts of individual cases. However, two
                                                                                G
members of the said committee did not participate in the proceedings for
the reasons best known to them. So, it precipitated into committee of
three members which carried out the aforesaid directions and submitted
its report. The said committee issued show cause notice to each individual,
considered the facts in each individual case and classified the said
employees in three categories mentioned hereinbelow:                            H
408                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A     (i) The employment secured on false and forged document;
      (ii) Illegal appointments; and
      (iii) Irregular appointments.
               8. About 91 cases which were classified as irregular appointments
      were eventually ordered to be regularised keeping in view the direction
B     in Umadevi (supra). Rest of the appointments being void ab initio,
      were cancelled and the services of the concerned employees were
      terminated. The writ petitioners again challenged the order of termination
      before the High Court. Some of the writ petitions were allowed. Against
      such orders the State Government approached the Division Bench by
      filing a group of Letter Patent Appeals. The Division Bench by a common
C     judgment and order, with the consensus of the learned advocates for the
      parties, referred the matter with detailed directions to a Committee
      comprising Justice Uday Sinha (retired). These matters have been
      dealt with by Justice Uday Sinha (retired). He has made report in each
      case placed before him. Those matters are not the subject-matter of
D     this group of appeals. Writ petitions were filed by a group of appointees
      challenging the report of the State Committee before the High Court. A
      learned Single Judge of the High Court allowed the said writ petitions.
      The respective orders made by the learned Single Judge were challenged
      by filing LPAs before the Division Bench. The Division Bench allowed
      some of the appeals. In some cases, the Division Bench directed the
E     State Government for regularisation in service of the writ petitioners.
      These orders are under challenge in the instant appeals.
             9. Learned senior counsel appearing for the State of Bihar submits
      that the writ petitioners are illegal appointees. Those whose appointments
      were found to be irregular by the committee constituted in pursuance of
F     the judgment and order of the Division Bench were distinct from those
      whose appointments were illegal and the same cannot be treated on the
      same footing. Since, the appointments of the writ petitioners were found
      illegal, their services were terminated after giving them an opportunity
      of hearing. The State Committee has examined the correctness of
      appointment of each of the writ petitioners and found them to be illegal.
G
      The appointment of the writ petitioners have not been made against the
      vacant post by the competent authority. Their appointment was on non-
      sanctioned post by incompetent authority, without an advertisement and
      that their appointment could not have been saved in terms of the judgment
      in Umadevi (supra).
H
THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD 409
                [S. ABDUL NAZEER, J.]

       10. On the other hand, learned counsel appearing for the writ              A
petitioners submitted that the writ petitioners have the requisite
qualification for being appointed to the post in question. They have been
appointed by the committee constituted and headed by the Regional
Deputy Director considering their past health service experience and
qualification and posted in different primary health centres and worked
                                                                                  B
for the past 2 to 3 decades. Their appointment is fully protected by the
judgment in Umadevi (supra) and M.L. Kesari (supra). Therefore, they
cannot be terminated from service at this stage of their career, that too
without holding any disciplinary enquiry against them.
     11. We have carefully considered the submissions of the learned
counsel for the parties and perused the materials placed on record.               C

       12. It is not in dispute that the Government of Bihar in its
Administrative Reforms department had issued instructions for
appointment to Class III posts in the Government office under its circular
No. 16440 dated 03.12.1980. The said circular applies to Class III posts
other than the posts which are filled in by appointment of candidates             D
selected by Bihar Public Service Commission after a competitive
examination and to the posts which are governed by the Government
resolution dated 28.01.1976. The said circular sets out a detailed
procedure for notifying the vacancies in Secretariat and its attached
offices, District Magistrates and other Muffassil Offices and for calling         E
for applications, preparation of a common merit list and appointment
from the said common merit list in the order of merit. It also provides
the procedure for constitution of selection committee, preparation of
merit lists and wait list, duration of merit lists and wait list. A similar
circular No. 16441 was also issued on 03.12.1980 for appointment to
Class IV posts in the Muffassil Offices of the Government. These                  F
circulars had been issued to avoid discrimination in appointment to Class
III and Class IV posts in the Government offices and provide for
generalized procedure in consonance with Articles 14 and 16 of the
Constitution. The appointment of the writ petitioners have not been
made in accordance with these circulars. Therefore, the contention of             G
the learned counsel for the writ petitioners is that since the writ petitioners
have served for more than 10 years and some of them have even
completed 20 years of service, they ought to have been regularized in
terms of the judgment in Umadevi (supra) and M.L. Kesari (supra).

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410                 SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A            13. In Umadevi (supra) the Constitution Bench has held that unless
      appointment is made 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 was an engagement or
      appointment on daily wages or casual basis, the same would come to an
B
      end when it is discontinued. A temporary employee could not claim to be
      made permanent on the expiry of his term of appointment. It was also
      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,
C     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. In paragraph 43 of Umadevi (supra), it was held as
      under:
            “43. Thus, it is clear that adherence to the rule of equality in
D           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
E           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
F           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
G           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
H           the instance of temporary employees whose period of employment
THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD 411
                [S. ABDUL NAZEER, J.]

      has come to an end or of ad hoc employees who by the very                A
      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
                                                                               B
      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
      directions, since, after all, if ultimately the employee approaching     C
      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
                                                                               D
      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.”
                                                     (Emphasis supplied)       E

       14. However, in paragraph 53 an exception is made to the general
principles against regularisation as a one-time measure which is as under:
      “53. One aspect needs to be clarified. There may be cases where
      irregular appointments (not illegal appointments) as explained in        F
      S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan
      and referred to in para 15 above, of duly qualified persons in duly
      sanctioned vacant posts might have been made and the employees
      have continued to work for ten years or more but without the
      intervention of orders of the courts or of tribunals. The question
      of regularisation of the services of such employees may have to          G
      be considered on merits in the light of the principles settled by this
      Court in the cases abovereferred to and in the light of this judgment.
      In that context, the Union of India, the State Governments and
      their instrumentalities should take steps to regularise as a one-
      time measure, the services of such irregularly appointed, who            H
412                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A           have worked for ten years or more in duly sanctioned posts but
            not under cover of orders of the courts or of tribunals and should
            further ensure that regular recruitments are undertaken to fill those
            vacant sanctioned posts that require to be filled up, in cases where
            temporary employees or daily wagers are being now employed.
            The process must be set in motion within six months from this
B
            date. We also clarify that regularisation, if any already made, but
            not sub judice, need not be reopened based on this judgment, but
            there should be no further bypassing of the constitutional
            requirement and regularising or making permanent, those not duly
            appointed as per the constitutional scheme.”
C            15. In some of the LPAs the Division Bench appears to have
      followed paragraph 11 in M.L. Kesari (supra) for directing regularisation
      of service without considering the observations contained in paragraph
      7 of the judgment. In paragraph 11, it was observed that “the true effect
      of the direction is that all persons who have worked for more than ten
D     years as on 10.4.2006 [the date of decision in Umadevi (3)] without the
      protection of any interim order of any court or tribunal, in vacant posts,
      possessing the requisite qualification, are entitled to be considered for
      regularisation within six months of the decision in Umadevi (3) as a one-
      time measure …………”. However, in paragraph 7 after considering
      Umadevi (supra) this Court has categorically held that for regularisation,
E     the appointment of employee should not be illegal even if irregular.
            “7. It is evident from the above that there is an exception to the
            general principles against “regularisation” enunciated in Umadevi
            (3), if the following conditions are fulfilled:

F               (i) The employee concerned should have worked for 10 years
            or more in duly sanctioned post without the benefit or protection
            of the interim order of any court or tribunal. In other words, the
            State Government or its instrumentality should have employed
            the employee and continued him in service voluntarily and
            continuously for more than ten years.
G
               (ii) The appointment of such employee should not be illegal,
            even if irregular. Where the appointments are not made or
            continued against sanctioned posts or where the persons appointed
            do not possess the prescribed minimum qualifications, the
            appointments will be considered to be illegal. But where the person
H
THE STATE OF BIHAR AND ORS. v. KIRTI NARAYAN PRASAD 413
                [S. ABDUL NAZEER, J.]

      employed possessed the prescribed qualifications and was working          A
      against sanctioned posts, but had been selected without undergoing
      the process of open competitive selection, such appointments are
      considered to be irregular.”
                                                       (Emphasis supplied)
       16. In State of Orissa and Anr. v. Mamata Mohanty, (2011) 3              B
SCC 436, this Court has held that once an order of appointment itself
had been bad at the time of initial appointment, it cannot be sanctified at
a later stage. It was held thus:
      “68(i) The procedure prescribed under the 1974 Rules has not
      been followed in all the cases while making the appointment of            C
      the respondents/ teachers at initial stage. Some of the persons
      had admittedly been appointed merely by putting some note on
      the notice board of the College. Some of these teachers did not
      face the interview test before the Selection Board. Once an order
      of appointment itself had been bad at the time of initial appointment,    D
      it cannot be sanctified at a later stage”.
                                                       (Emphasis supplied)
       17. In the instant cases the writ petitioners have filed the petitions
before the High Court with a specific prayer to regularize their service
and to set aside the order of termination of their services. They have          E
also challenged the report submitted by the State Committee. The real
controversy is whether the writ petitioners were legally and validly
appointed. The finding of the State Committee is that many writ petitioners
had secured appointment by producing fake or forged appointment letter
or had been inducted in Government service surreptitiously by concerned         F
Civil Surgeon-cum-Chief Medical Officer by issuing a posting order.
The writ petitioners are the beneficiaries of illegal orders made by the
Civil Surgeon-cum-Chief Medical Officer. They were given notice to
establish the genuineness of their appointment and to show cause. None
of them could establish the genuineness or legality of their appointment
before the State Committee. The State Committee on appreciation of              G
the materials on record has opined that their appointment was illegal and
void ab initio. We do not find any ground to disagree with the finding
of the State Committee. In the circumstances, the question of
regularisation of their services by invoking para 53 of the judgment in
Umadevi (supra) does not arise. Since the appointment of the petitioners
                                                                                H
414                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A     is ab initio void, they cannot be said to be the civil servants of the State.
      Therefore, holding disciplinary proceedings envisaged by Article 311 of
      the Constitution or under any other disciplinary rules shall not arise.
             18. Therefore, the Civil Appeals filed by the writ petitioners in the
      aforesaid batch of appeals are hereby dismissed. The Civil Appeals
B     filed by the State of Bihar are allowed and the writ petitions filed before
      the High Court of Patna in the said cases are hereby dismissed. There
      shall be no order as to costs.

      Ankit Gyan                                                 Appeals disposed of.

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