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PETITIONER: ARUN KUMAR ROUT & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       20/11/1997

BENCH: G.N. RAY, S.P. BHARUCHA

ACT:

HEADNOTE:

JUDGMENT:                THE 20TH DAY OF NOVEMBER, 1997 Present:                 Hon’ble Mr. Justice G.N. Ray                 Hon’ble Mr. Justice S.P. Bharucha Shanti  Bhushan,   Sr.  Adv.,  Jayant  Bhushan,  Adv.  (M.C. Dhingra) Adv. (NP) of with him for the appellants B.B. Singh, Adv. for the Respondents.                          O R D E R      The following Order of the Court was delivered: Leave granted.      Heard learned  counsel for  the parties. This appeal is directed against  the order  dated 23.9.1994  passed by  the Patna High  Court in  CWJC  No.  13043  of  1993.  The  writ petition filed  by the  appellants, 20  in number,  claiming regularisation in  the Health  Department of  the Government Bihar was  dismissed by  the impugned judgment. All the said 20 appellants  were appointed  on 1st of January 1980 by the Civil Surgeon,  Dumka in  Class III  and class  IV posts  as daily wager.  On 30th  March, 1989  the appointments  of the +appellants were  regularised on  the recommendation  of the Appointment  Committee.  On  25.8.1993  the  District  Level Establishment Committee  issued show  cause notices  to  the appellants asking them to show cause why their appointment s should not  be cancelled  in view  of the fact that they got irregular appointments  Ultimately on 14.10.93, the services of the  appellants were  terminated. It  has been found as a matter of  fact that  at the  time initial  appointment,  no advertisement  had   been  given   and  he  names  of  these appellants  were   also  not  sponsored  by  the  Employment exchange. There  is, however,  no dispute  that they are not lacking in  requisite qualifications  for appointment to the respective posts  in Class  III or  Class IV.  there is also nothing on  record to  suggest that  in obtaining  the  said appointments the  appellants were  guilty of  any  fraud  or privy to any irregularity. Although in the matter of getting appointment  in   the  Government   Service,  the  procedure required to  be followed  for such appointments cannot be by passed and if the initial appointment was illegal on account of  not   following  the   procedure  for  appointment,  the incumbent  obtaining   appointment  without   following  due

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procedure  cannot   claim  as   a  matter  of  right  to  be regularised. This  Curt, however,  has looked  with sympathy when question  of regulation came for consideration in cases of temporary or adhoc appointments, even made improperly, if the incumbents  had been allowed to continue for a long time because of  the human  problem involved  in  such  continued service. In  the instant  case,  all  the  appellants  after getting appointments  continued for more than five years and it also  appears from  the records of the case that they got salary initially  for a  few months and thereafter continued in service  without getting any salary whatsoever from  1989 up to  some period  of 1992.  Thereafter the salary had been paid to  them until  the services were terminated. It may be stated that  there is  nothing on record to suggest that the service   rendered   by   the   appellants   was   otherwise unsatisfactory. It may also be stated that such salaries had been paid  to these  appellants after a departmental inquiry indicating that even though there were irregularities in the appointment but  the appellants had requisite qualifications for the  respective  post  to  which  they  were  appointed. Although the  appellants had not been appointed by following the  due   procedure  and   therefore,  they   cannot  claim regularisation as  a matter  of course  but considering  the fact that they had satisfactorily served the department even without getting any salary for a long time and they were not guilty of  any fraud or sharp practice and also did not lack in requisite  qualification  and  they  had  been  appointed against  sanctioned  posts,  we  feel  that  the  appellants deserve sympathetic  consideration in  guesting  appointment against  such  sanctioned  posts  on  humane  consideration. Considering the  special facts  of this appeal it appears to us that  it will  be just and proper consistent with ends of justice to  direct that  50 percent  of the sanctioned posts which were  held by  these appellants  should be filled from amongst the  appellants on the basis of their inter se merit position   by    taking   into    account   their   academic qualifications by  waiving question  f age  bar if  any  and usual procedures  for such appointment. The remaining 50 per cent of  the said  sanctioned posts,  will be  filed  up  on regular basis  by throwing  it open  to the  members of  the public and  following  the  procedure  prescribed  for  such appointment in  the State of Bihar. The remaining appellants who will  not be  absorbed against  50 per  cent of the said sanctioned posts will be entitled to compete for appointment in the  balance 50  per cent posts along with other eligible candidates but  they  will  not  be  treated  unsuitable  on account of  age bar.  On the  contrary,  in  the  matter  of assessment of  merit they  will be  given  a  credit  of  25 percent marks  for  the  experience  they  have  gained  for services rendered  by them  for the  said long  period of  5 years or  more. These  directions are given on consideration of the  special facts  of this  case and  this  order  being confined to  the special  facts of  this case  is not  to be treated as  a precedent.  The appeal is accordingly disposed of without  any order as to costs. We reasonably expect that the concerned authorities will make the exercise as early as practicable for  filling  up  the  vacant  sanctioned  posts preferably within a period of six months from today.