TaxTMI 
TaxTMI 
2019 (10) TMI 1641
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....ARISING OUT OF SLP (CIVIL) NO. 22300 OF 2014) CIVIL APPEAL NO. 7892 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 28306 OF 2014) CIVIL APPEAL NO. 7907 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 32024 OF 2014) CIVIL APPEAL NOS. 7893-7900 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 29303-29310 OF 2014) CIVIL APPEAL NO. 7901 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 29399 OF 2014) CIVIL APPEAL NO. 7906 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 32033 OF 2014) CIVIL APPEAL NOS. 7902-7903 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 29940-29941 OF 2014) CIVIL APPEAL NO. 7904 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 30704 OF 2014) CIVIL APPEAL NO. 7905 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 31218 OF 2014) CIVIL APPEAL NOS. 7911-7913 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 34818-34820 OF 2014) CIVIL APPEAL NO. 7908 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 33708 OF 2014) CIVIL APPEAL NO. 7910 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 34667 OF 2014) CIVIL APPEAL NO. 7909 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 34668 OF 2014) CIVIL APPEAL NO. 7611 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 35375 OF 2014) CIVIL APPEAL NO. 7919 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 3280 OF 2015) CIVIL APPEAL NO. 7914 OF 2019 (ARISING....
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.... Himanshu Shekhar, AOR Mr. Manu Shanker Mishra, AOR Mr. Pahlad Singh Sharma, AOR Mr. Ajay Kumar Singh, AOR Mr. Gopal Singh, AOR Mr. Gaurav Agrawal, AOR Mr. Shikhil Suri, Adv. Mr. Shiv Kumar Suri, AOR Mr. Kedar Nath Tripathy, AOR Mr. Navin Prakash, AOR Mr. Abhinav Mukerji, AOR Mr. Smita Mukherjee, Adv. Mr. Hitesh Kumar Sharma, Adv. Ms. Meenakshi Das, Adv. Mr. Binay Kumar Das, AOR Mr. Kusum Chaudhary, AOR Mr. N. Rai, Sr. Adv. Prerna Singh, Adv. Mr. Shantanu Sagar, AOR Mr. Chandan Kumar, AOR JUDGMENT HEMANT GUPTA, J. 1) This judgment shall dispose of two sets of appeals; one by the State arising out of an order dated July 12, 2011 passed by the Division Bench of the High Court of Judicature at Patna [for short, 'High Court'] whereby, the appeals filed by the State were dismissed directed against the order passed by the learned Single Judge on October 6, 2009; and another set of appeals arising out of an order passed by the Division Bench of the High Court on September 24, 2014 whereby the order passed by the learned single Bench on October 6, 2009 was set aside. Some other Appeals are also on board against the orders passed by the High Court on other dates. 2) Since the is....
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....rit Petitions preferred by the affected employees are hereby disposed of by this common 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 v. Uma Devi (supra) 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. 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 by them and their final decision in the light of this judgment and o....
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....2010, July 12, 2011, July 14, 2011, July 20, 2011, April 15, 2013, October 30, 2013 and November 30, 2015 which are subject matter of challenge in the present appeals. 8) The order passed by the learned Single Judge also gave rise to LPA No. 1623 of 2009 and other appeals. Such appeals were allowed by consent on February 11, 2010 whereby, one man Committee under the Chairmanship of Hon'ble Mr. Justice Uday Sinha, a retired Judge of the High Court was entrusted the task of looking into various facts of the nature of appointment with the view to adjudicate the legality of their appointments and continuance in service. Subsequently, LPA No. 560 of 2010 and some other appeals were allowed on March 23, 2010 in the light of order passed in the aforesaid LPA but without any consent. The said orders were challenged before this Court in Civil Appeal No. 6484 of 2011 and other matters. The appeals were allowed by this Court on August 8, 2011, inter alia, on the ground that without consent, the appeal could not be disposed of in terms of LPA No. 1623 of 2009 and other connected appeals. The appeals were directed to be decided afresh. It is thereafter, the Division Bench passed an order on ....
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.... 44. The petitioners were appointed in temporary capacity by a process contrary to Article 14 of the Constitution without competitive selection as an individual favour doled out to them. There is no material to hold that they were appointed against vacant sanctioned post and possessed qualifications for the same. They were terminated before (Uma Devi ) (supra) and have sought to retain their status by virtue of Court proceedings and are therefore not entitled to the benefits of paragraph 53. The issue of any procedural irregularity for a finding of forged appointment is therefore irrelevant." 10) The Division Bench in its order dated September 24, 2014, following the Full Bench judgment of that court, now subject matter of challenge by the employees in these appeals, held as under: "............ The State Government, pursuant to the aforesaid direction, in its wisdom, appears to have constituted a committee of five members. Ultimately, only three members sat in the enquiry; held the enquiry and made its report. We do not see any reason why the said report cannot be believed or should be held to be illegal or invalid. It is not in dispute that the State Committee did of....
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....rvice being irrelevant; and that illegal appointment void abinitio cannot be regularised under any circumstances. In view of the aforesaid decision of the Full Bench of this Court, the law laid down by the Division Bench of this Court in the matter of The State of Bihar & Ors. Vs. Binay Kumar Singh & Ors. [2011 (3) PLJR 547] is no longer a good law. In the present case, the appointments of the writ petitioners have been repeatedly held to be non-est or void ab initio. The question of regularization of their service even by invoking paragraph 44 of the judgment in the matter of Uma Devi (3) (supra) shall not arise." 11) The appointments in the Health Department to Class III and Class IV posts firstly came up for consideration before this Court in Ashwani Kumar. This Court examined the following points: "1. Whether the appointments of Class III and Class IV employees on the Tuberculosis Eradication Scheme as a part of 20-Point Programme were legal and valid. 2. Whether the confirmation of these employees was legally justified. 3. Whether principles of natural justice were violated while terminating services of all these 6000 employees appointed ....
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....ority to throw the recruitment procedure for recruiting such Class III and Class IV employees to the winds and to make recruitment in an arbitrary manner at his whims and fancies. Nowhere this Resolution indicates that the earlier government orders laying down the procedure regarding recruitment to Class III and Class IV posts were to be given a go-by. Consequently, the Resolution of 25-3-1983 has to be read along with the Government Orders dated 3-12-1980 and not dehors them..... It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available on which he can work and can be paid as per the budgetary sanctions... It must, therefore, be held that the appointments of 6000 employees as made by Dr Mallick in the Tuberculosis Eradication Scheme were ex facie illegal. As they were contrary to all recognised recruitment procedures and were highly arbitrary, they were not binding on the State of Bihar. The first point for determination, therefore, will have to be answered in the negative." 13) In respect of second point, it was held that if the initial entry itself is unauthorised and that appointment is....
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....ust not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration; however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisation and whatever purported regularisation was effected in their favour remained an exercise in futility. ... For all these reasons, therefore, it is not possible to agree with the contention of the learned counsel for the appellants that in any case the confirmations given to these employees gave them sufficient cloak of protection against future termination fr....
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.... There is a residual category at S.NO. 1 i.e. appointment made by Dr. A.A. Mallick, Dy. Director, T.B. and S. Nos. 93 & 94 who are now claiming appointment. Their cases will be dealt with separately." 18) The first category of cases was decided by three Judge Bench in Kirti Narayan Prasad on November 30, 2018 wherein, it was held as under: "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 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 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 caus....
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....t vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularisation. The cases directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. xx xx xx 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 : AIR 1967 SC 1071], R.N. Nanjundappa [(1972) 1 SCC 409 : (1972) 2 SCR 799] a....
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....a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognised by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees...." 22) The State Committee has examined all the appointments and segregated appointments based on forged documents and also irregular appointments. Once the detailed report has been submitted examining the merit of each candidate, and when the judgment of this Court in Ashwani Kumar and Uma Devi conclusively answer the questions against the employees, no further discussion on the arguments raised would survive. However, since the arguments have been addressed in respect of the third category of ca....
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...., Bihar and Orissa Treasury Manual. The delegation is subject to the following conditions:- (1) The cost should not be raised beyond the total amount sanctioned. (2) Where the temporary establishment is sanctioned by the State Government, the pay of no post should be raised beyond the limit of minimum of the prescribed scale thereof. (3) In other cases the pay of no post should be raised beyond the limit of sanction enjoyed by the authority which sanctioned the temporary establishment. xxx 47 Power to appoint a Government servant to hold temporarily or to officiate in more than one post at a time. Rule 103 of the Bihar Service Code. Full power provided that such power shall extend only to cases in which he is competent to make a substantive appointment to each of the posts concerned. 25) Clause 7 of the Manual contemplates powers of Deputy Director of Health Services whereas clause 8 deals with powers of Deputy Director of Health Services (Public Health). The powers of Assistant Director of Health Services are contained in Clause 9 which reads as under: "9. The following powers are delegated to the Assistant Director of Health Servic....
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....collect the information from attached offices at the start of the year for the posts actually to be filled during the year and the information of vacancies. Suitable candidates will be selected from these applicants according to the vacancies and suitable persons will be allotted to various attached offices for appointment, as per requirement, from the common merit list. All the appointments will be made by the competent authority for their respective offices. xx xx xx (i) One Selection Committee will be made for preparation of merit list in the Secretariat and attached offices and the Head of attached establishment will be the Chairman of this Committee and any senior off....
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....fficer has not followed the prescribed procedure and if the charge is found proved, the officer will be placed under suspension immediately and departmental action will be taken to remove him from services. Such incorrect appointments will be cancelled immediately." 28) Similar is the circular in respect of appointment to Category IV post. On January 20, 1992, the State issued a circular regarding transfer and posting of Class III and Class IV employees of Health Department and it was decided that the employees shall be decentralized at the District level. It was communicated that transfer and posting as far as possible shall remain within the jurisdiction of appointing officer. Clause 3 and 6 of the said circular reads as under: "3. Appointment officers for different category of employees of Health Department are briefly mentioned as under: (a) Civil Surgeon - For district class III and IV employees (below superior category) and A.N.M. (b) Superintendent, Medical College Hospital - for Class III and IV employees posted at Medical College Hospital. (c) State Programme Officer (Malaria, TB, Leprosy, Faileria) - Class III and IV employees under ....
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....posts. 30) The exception in respect of appointing authority came with the circular dated December 3, 1980 which contemplated that suitable candidates be selected as per requirement from common merit list by the competent authorities of Secretariat and attached offices; District Collector and equivalent Officer In charge of the Divisional Offices. Dr. Mallick, Deputy Director in the subordinate offices of the Directorate of Health Services was not competent to make appointments against Category III or Category IV posts in view of the provisions of the Manual as also in terms of the circular dated December 3, 1980 recorded by this Court in Ashwani Kumar as well. 31) Though, certain appointments have been made by Civil Surgeon which Mr. Mukherjee does not dispute as he was the competent authority but it is argued that none of the requirements to fill up the public post was adhered to. Appointments were made to the public posts without following any procedure and without there being any sanctioned post. 32) An argument was raised on behalf of learned counsel for the employees that some of the appointments have been made by Regional Deputy Director as four posts of Assistant Di....
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....t, there cannot subsist a branch thereof in the shape of a claim to salary. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non-est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. 37) Such judgment of the Full Bench was approved by three Judge Bench of this Court in a Judgment reported R. Vishwanatha Pillai v. State of Kerala & Ors. [(2004) 2 SCC 10]. This Court held as under: "17. The point was again examined by a Full Bench of the Patna High Court in Rita Mishra v. Director, Primary Education, Bihar [AIR 1988 Pat 26 : 1988 Lab IC 907 : 1987 BBCJ 701 (FB)] . The question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13) "13. It is manifest from the above that the r....
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....nt letter. The act of commission and omission of the Director Incharge would, therefore, suffer from the vice of lack of authority and nullity in law. 42) In Nidhi Kaim & Anr. v. State of Madhya Pradesh & Ors. [(2017) 4 SCC 1], a three Judge Bench was dealing with admission of students to MBBS Course on the basis of illegal and unfair admission process. The Court held as under: "92. ...Having given our thoughtful consideration to the above submission, we are of the considered view that conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and meticulously orchestrated plan, to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to espousing the cause of "the unfair". It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had adopted and followed rightful means. Such a course would cause people to question the credibility of the justice-delivery system itself. The exercise of jurisdiction in the manner suggested on behalf of the appellants would surely depict the Court's support in favour of the ....
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....f the jurisdiction vested in this Court under Article 142 of the Constitution. We, therefore, hereby decline the above prayer made on behalf of the appellants." 43) In another three Judge Bench judgment in Chairman and Managing Director, Food Corporation of India & Ors. v. Jagdish Balaram Bahira & Ors. [(2017) 8 SCC 670], the Court was examining the consequences of false caste certificate produced to seek appointment. The Court held as under: "69. For these reasons, we hold and declare that: xx xx xx 69.3 The decisions of this Court in R. Vishwanatha Pillai [R. Vishwanatha Pillai v. State of Kerala, (2004) 2 SCC 105 : 2004 SCC (L&S) 350] and in Datta....