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PETITIONER: ASHWANI KUMAR & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT16/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  JT 1995 (8)   563        1995 SCALE  (6)779

ACT:

HEADNOTE:

JUDGMENT: (With  Civil   Appeal  Nos  10760-11058,  11062-66  of  1995 (arising out  of  SLP  (C)  Nos.  13203-13213,  13137-13140, 13933-13934, 14009-14030,  14031-14036, 14037-14042,  14050- 14067, 16237-16238,  15281-15435, 17114, 17292-17294, 14759, 19408, 21949, 22649, 23059, 22650-22669, 22671-22677, 22678- 22687, 22688-22692  of 1994, and 1041, 1243-1245, CC.254 and 255, SLP(C)  No.2, CC.974, SLP(C) No. 7095 and 7912, CC.1557 and 2302 & SLP(C) Nos.8110, 11091, 8164-8166, 13548 and 8900 of 1995.)                       J U D G M E N T HANSARIA, J.      I have  had the  benefit of  perusing the  judgment  of learned brother  Ramaswamy, J.  in draft.  Despite the great respect he  commands at  my hand,  I have  not been  able to persuade myself  to agree  with him.  According to  me,  the impugned termination order deserves to be set aside, and not upheld, as  opined by learned brother. To sustain any stand, it is stated as below. 2.   A wrong-doer,  a sinner,  has to  be punished;  so  too those  who  aid,  abet  or  instigate  him.  But  not  those regarding whom  only a doubt is created. Full care has to be taken to  see  that  while  punishing  the  wrong-doer,  the penalty does  not visit those who may be innocent, specially when the  penalty as such which would hit hard so much so as to take away livelihood of the concerned persons. 2A.  This prologue  sums up  the core  question which we are called upon  to decide in this batch of cases, which involve the fate  of 1363  appellants inasmuch  as we have to decide whether the  services of  this number  of persons  have been duly and  legally terminated  or not.  The  enormity  itself calls for  a cautious  approach. This  is  more  so  because Article 21 of the Constitution would require us to tread the path avoiding pitfalls, whose number is significant in these cases. 3.   The prima  donna (villain of the piece) is one Dr. A.A. Mallick, who  at the  relevant time  was holding the post of

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Deputy Director  (tuberculosis) Bihar,  and had  come to  be vested with  almost absolute  powers to see that the targets fixed by  the Government  of India  in implementing a scheme relating to  Anti-Tuberculosis programme  are achieved. When it came  to the notice of the State Government in the Health Department that  some centres  were not  working as  per the directions of  Dr. Mallik,  all concerned  were asked by the Government  to  do  so.  The  saying  "Power  corrupts,  and absolute power  corrupts absolutely" became true inasmuch as Dr. Mallik  started  either  appointing  himself  or  giving directions right and left to appoint large number of persons as class  III/IV employees.  It was ultimately found that as against about 2500 sanctioned posts the number of persons to be so  appointed shot up to 6000. Questions relating to this came to  be asked  even on the floor of the Assembly by 1987 when the concerned Minister stated that the appointments had been given  after following  all procedures.  The matter did not rest there and various persons not getting their salary, though appointed, approached the High Court of Judicature at Patna - the number of such writ applications ultimately came to be  around 250. The High Court observed at one stage that it saw  no reason  as to  why the  State should  not proceed against  concerned   officers  who   benefitted   themselves illegally, and  disposed of  the  writ  petitions  with  the direction that  an enquiry into the matter shall be held and upon  consideration  of  the  individual  cases  appropriate orders shall  be passed for payment of salary for the period the concerned  person had  actually worked,  subject to  the condition that it was found that they had fulfilled criteria for obtaining salary. Pursuant to these observations, a high powered Committee  came to  be  formed,  consisting  of  (1) Director-in-Chief,  Health  Services;  (2)  Deputy  Director (Administration)  Health   Services;  (3)   Deputy  Director (Planning)  Health   Services;  and   (4)  Deputy   Director (Tuberculosis).  The   Committee  issued  a  general  notice through newspapers  to all  concerned and  directed them  to appear before  the Committee  for personal  hearing  between 17.8.92 to  29.9.92. A  report was  submitted  subsequently, pursuant to  which a  blanket order  came to  be  issued  on 30.4.93, terminating the services of all the employees. 4.   The same  came to  be challenged  again before the High Court. Long  arguments were  advanced by  both the sides and after applying its mind to various points of fact and law, a Division Bench of the High Court dismissed virtually all the writ petitions  by its  order dated  May 6,  1994. The  main order of  dismissal was passed In CWJC No.4942/93 and batch. This was  followed by  other Benches  of the  High Court  in analogous matters.  The affected  employees have filed these appeals under Article 136 of the Constitution. 5.   We were  also addressed  at length  by various  counsel appearing for  the appellants;  so too by the State counsel. Shri Shanti  Bhushan appearing  for some  of the  appellants covered most of the ground, which came to be supplemented by others. Shri Verma replied on behalf of the State. 6.   disposal of  the appeals,  require determination of the following:      (1)  Whether the initial appointments of      the appellants  were in  accordance with      law?      (2)  Whether  the   ser  vices   of  the      appellants were duly regularised? and      (3)  Whether natural  justice  had  been      complied with before their services were      terminated?      I would consider these aspects seriatim.

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    7.   Whether the  initial appointment of      the appellants  were in  accordance with      law?      The controversy  qua this  facet of the case is whether the appellants  were required  to be  initially appointed in accordance with the procedure of appointment to class III/IV posts as  contained in  the Office  Memorandum (OM)  of even number issued  on December  3, 1980  by  the  Department  of Personnel  and   Administrative   Reforms   of   the   State Government. There  is  no  dispute  from  the  side  of  the appellants  that   the  procedure  had  not  been  followed. Question is whether it was required to be so done? 8.   Shri Shanti Bhushan was emphatic in his contention that this OM  having been meant for appointment to "posts" had no application to  the  initial  appointment  inasmuch  as  the appellants  had  been  appointed  on  daily  wage  basis  to implement the crash programme of eradication of tuberculosis from the  State -  the urgency  in the matter being apparent from the  fact that  the State Government was issuing orders to all  concerned to  comply with  the orders  or directions given by  Dr. Mallik  so  as  to  achieve  the  target.  The appointments  were   thus  not  to  any  ‘posts’,  as,  such appointments  can  be  made  only  if  sanctioned  posts  be available, which  is not  required to be so in case of daily rated workers,  who are  appointed as and when needed and in such number  as would  meet the  exigency of  the situation. This was  sought to  be brought  home by  contending that an urgent need  for employing such persons may arise, say, when there is a sudden flood or earthquake, when employment would not brook  delay and financial rules of the Government would permit employment of required number of persons, whose wages could be  paid out  of Contingent  Fund. This  submission is countered by  Shri Verma  for the  State, according to whom, even while  making initial  appointment the  procedure  laid down in the aforesaid OM was required to be followed. 9.   To support  his contention, Shri Shanti Bhushan brought to my  notice a Constitution Bench decision of this Court in State of Assam vs. Kanak Chandra Dutta, 1967 (1) SCR 679, at p. 683 of which it has been stated that "post may be created before the  appointment or simultaneously with it. A post is an appointment, but even appointment is not a post. A casual labourer is  not the  holder of  a post".  Shri Verma on the other hand has sought to rely on a 3 Judge bench decision in Union of India vs. Deepchand Pandey & Anr. 1992 (4) SCC 432. As to  this decision,  Shri Shanti  Bhushan’s contention  is that it  has not  held that persons employed on casual basis would be holders of posts. 10.  The observation  in  the  Constitution  Bench  case  if unambiguous inasmuch  as the  statement  is  that  a  casual labourer is  not the  holder of  a  post.  As  to  Deepchand Pandey’s case  it may  first be  mentioned that  it has  not taken note of the Constitution Bench decision. This apart, a perusal of  the  judgment  shows  that  it  dealt  with  the question as  to whether  a Central  Administrative Tribunal, constituted under  Administrative Tribunal  Act, 1985, which was passed  pursuant to  Article 323-A  of the Constitution, was vested with the jurisdiction to entertain and decide the claim of  the respondents as against the appellant (Union of India) and its officers in Railway Department. This question came up  for determination  because the respondents, who had been engaged  as casual  typists on  daily wages  in railway offices, challenged  the order  of their  termination before the High  Court, which  allowed the same. The Union of India contended that the High Court had no jurisdiction in view of the  provisions   in  the  aforesaid  Act.  To  decide  this

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question, the  Bench noted  the case  of the respondents and then referred to the scope of Article 323-A and held that as the respondents  were claiming  the right to continue in the employment of  the Union of India as before, with additional claim of  temporary status, it was idle to suggest that such claim was  not  covered  by  the  Act.  It  was,  therefore, concluded that  the remedy of the respondents was before the central Administrative Tribunal and not the High Court. 11.  The judgment  in Deepchand Pandey cannot, therefore, be said to  have laid  down that  even casual  workers on daily wages are  holders of  posts. In fact, this question had not arisen for  decision in  this form  in that case. This being the position  and the  Constitution Bench  observation being unambiguous, I  hold that the appointments of the appellants initially were  not to  any posts,  and  so,  the  procedure mentioned in  the  aforesaid  OM  was  not  required  to  be followed. 12.  Whether  the  services  of  the  appellants  were  duly regularised?      The aforesaid  question would  need  answering  of  the following:      (i)  Was the  procedure mentioned  in OM      of 3rd  December, 1980  required  to  be      followed?      (ii)    Whether non-advertisement of the      posts introduced any infirmity?      (iii)  Whether  non-information  to  the      employment exchange  for filling  up the      posts   caused    any   dent    to   the      appointments ?      (iv)  Was there non-reservation of posts      for Scheduled  Castes/Scheduled  Tribes?      If so,  whether the  same introduced any      illegality  in   the   appointments   of      general candidates?      (v)    Whether  the  regularisation  had      been made  pursuant to recommendation of      the Selection  Committee  visualised  by      the aforesaid OM/      (vi)   Whether any panel was prepared by      the Selection  Committee? If  not,  does      this provide a good ground to regard the      appointments   as   violative   of   the      prescribed procedure ?      I propose  to discuss  these contentions  in the  order noted above.  It would  be  apposite  to  mention  that  the aforesaid are  the grounds mentioned in the blanket order of termination. 13.  Was the procedure mentioned in OM of 3rd December, 1980 required to be followed?      The thrust  of Shri  Shanti Bhushan’s  argument in this regard  is   that  regularisation   of  an  ad-hoc/temporary employee is  a constitutionally  protected right, as pointed out by  this Court  in Dharwad’s  case, 1990  (2)  SCC  396. Therefore, this  right should  not be  hedged with  any such procedure which should defeat it. 14.  This submission  calls for  an examination  of the  law relating to  regularisation, as  spelt out  by this court in its  various  decisions.  There  is  no  need  to  refer  to different pronouncements  on this  point inasmuch as the law came to  be summed up by a 3-Judge bench in State of Haryana vs. Piara  Singh and  others, 1992  (4) SCC 118. Indeed, the learned counsel of both the sides sought to rely on what has been  stated   in  this   decision  in   support  of   their contentions.

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15.  The Piara Singh Bench after referring to a large number of earlier  decisions on the point, which include Dharward’s case, summarised  the law  in paragraphs 45 to 53 which read as below:      "45. The  normal  rule,  of  course,  is      regular    recruitment    through    the      prescribed  agency   but  exigencies  of      administration may sometimes call for an      ad hoc  or temporary  appointment to  be      made. In such a situation, effort should      always  be   to  replace   such  an   ad      hoc/temporary employee  by  a  regularly      selected employee  as early as possible.      Such  a   temporary  employee  may  also      compete  along   with  others  for  such      regular selection/  appointment.  If  he      gets selected,  well and good, but if he      does  not,  he  must  give  way  to  the      regularly   selected    candidate.   The      appointment of  the  regularly  selected      candidate cannot  be withheld or kept in      abeyance for  the sake  of  such  an  ad      hoc/temporary employee.      46.  Secondly, an  ad hoc  or  temporary      employee  should   not  be  replaced  by      another ad hoc or temporary employee; he      must  be   replaced  only  by  regularly      selected employee.  This is necessary to      avoid arbitrary  action on  the part  of      the appointing authority.      47.  Thirdly, even  where an  ad hoc  or      temporary employment  is necessitated on      account    of    the    exigencies    of      administration, he  should ordinarily be      drawn  from   the  employment   exchange      unless it  cannot brook  delay in  which      case the  pressing cause  must be stated      on  the   file.  If   no  candidate   is      available or  is not  sponsored  by  the      employment  exchange,  some  appropriate      method consistent  with the requirements      of Article  16 should  be  followed.  In      other words,  there  must  be  a  notice      published  in   the  appropriate  manner      calling for  applications and  all those      who apply  in response thereto should be      considered fairly.      48.  An unqualified  person ought  to be      appointed only  when  qualified  persons      are  not  available  through  the  above      processes.      49.  If for  any reason,  an ad  hoc  or      temporary employee  is continued  for  a      fairly long  spell, the authorities must      consider  his  case  for  regularisation      provided he  is eligible  and  qualified      according to  the rules  and his service      record   is    satisfactory   and    his      appointment does  not run counter to the      reservation policy of the State.      50.  The proper  course  would  be  that      each State  prepares a scheme, if one is      not already in vogue, for regularisation      of such  employees consistent  with  its      reservation policy  and if  a scheme  is

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    already framed,  the same  may  be  made      consistent with  our observations herein      so as  to reduce avoidable litigation in      this behalf.  If and when such person is      regularised   he    should   be   placed      immediately  below  the  last  regularly      appointed  employee  in  that  category,      class or service, as the case may be.      51.  So   far    as   the   work-charged      employees   and    casual   labour   are      concerned,  the   effort  must   be   to      regularise them  as far  as possible and      as early  as possible  subject to  their      fulfilling the  qualifications, if  any,      prescribed for the post and subject also      to availability  of work.  If  a  casual      labourer is  continued for a fairly long      spell-say  two   or  three   years  -  a      presumption  may  arise  that  there  is      regular need  for his service. In such a      situation, it becomes obligatory for the      authority  concerned   to  examine   the      feasibility of his regularisation. While      doing so, the authorities ought to adopt      a  positive  approach  coupled  with  an      empathy for  the  person.  As  has  been      repeatedly  stressed   by  this   Court,      security of  tenure is  necessary for an      employee to give his best to the job. In      this behalf, we do commend the orders of      Government of  Haryana (contained in its      letter dated  April 6,  1990 referred to      hereinbefore) both  in relation to work-      charged  employees  as  well  as  casual      labour.      52.  We must  also say  that the  orders      issued by  the Governments of Punjab and      Haryana providing  for regularisation of      ad hoc/temporary  employees who have put      in two  years/one year  of  service  are      quite generous and leave no room for any      legitimate grievance by any one.      53.  These are  but a  few  observations      which we  thought it  necessary to make,      impelled by  the facts of this case, and      the  spate   of   litigation   by   such      employees. they  are not  exhaustive nor      can they  be  understood  as  immutable.      Each  Government  or  authority  has  to      devise its  own criteria  or  principles      for regularisation  having regard to all      the relevant  circumstances,  but  while      doing so,  it should  bear in  mind  the      observations made herein." 16.  The only other case which I propose to note, in view of strong reliance  on it  by Shri  Verma, is Delhi Development Horticulture Employees  Union vs  Delhi Administration, 1992 (4) SCC  99. Shri  Verma drew  my attention  to the  general observations made by the Bench in para 23 in which a mention was made  about the  common practice  to  ignore  employment exchanges and  to employ  and get  employed persons  who are either not  registered with  the employment exchange or who, though registered,  are lower  in the  waiting list  in  the employment register.  The Bench  stated that such employment is sought  and given  for  "various  illegal  considerations

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including money".  The motivating  force to  do so is to get the benefit  of regularisation  after one  has continued  to work for  240 days or more, knowing about the judicial trend that those  who have completed 240 days or more are directed to be  automatically regularised.  It was also observed that this has  led  to  development  of  "good  deal  of  illegal employment market  resulting in  a new  source of corruption and frustration  of those  who are waiting in the employment exchange for years". 17.  I would examine the question relating to regularisation of the appellants keeping the aforesaid in mind. Shri Shanti Bhushan submits  that what  was stated  in paragraph  11  of Dharward’s case  about regularisation  within  a  reasonable period being  a constitutional  goal has  been  accepted  in Piara Singh’s  case also  inasmuch  as  it  has  been  state paragraph 51  that security  of tenure  is  necessary  which requires adoption  of positive approach coupled with empathy for the  person, because of which the view taken was that if a casual labourer continued for a fairly long spell-say 2 or 3 years - a presumption may arise that there is if a regular need for  his services.  In such  a  situation,  it  becomes obligatory  for  the  authority  concerned  to  examine  the feasibility of this regularisation. 18.  The learned counsel further contends that it was, as if to  fulfil   the  constitutional  obligation,  that  on  the question of  regularisation of employees like the appellants being taken  up with  the Government,  it was  stated by the Director of  Health Services  to all concerned in his letter of 25.11.1982  that casual  labourers who had been appointed after 1974  and were  serving continuously  for 3  years  be absorbed against  the regularised posts. As to those working for less  than 3  years, this letter stated that they should also be absorbed against the vacant sanctioned posts. It is, therefore, urged  that no  procedure at  all was required to regularise those  who had  served for  3 years or more after 1974. 19.  I would  not agree  with Shri  Shanti Bhushan  that  no procedure at all was required to be followed, in view of the law as  mentioned in Piara Singh’s case, according to which, the adhoc/temporary  employees have  also to  get  selected, along with  others, to  get  regularised,  which  apparently means that  they must  undergo a selection process which has to be  according to  a settled  procedure. And the procedure for the  cases at hand is the one mentioned in the aforesaid OM. It is, therefore, to be seen whether there are materials to show  qua the  appellants that the procedure mentioned in the O.M. of 3rd December was not followed while regularising them. 20   As to  this facet  of the case, Shri Shanti Bhushan has sought to  rely  strongly  on  the  statement  made  by  the concerned Minister  on the  floor of  the  Assembly  on  two occasions. The  first was on 14.7.1987, when in reply to the question "(w)hether  it is a fact that from the year 1985 to March, 87  about 200 persons were appointed in Class III and IV posts  in different TB Institutes by the Incharge, Deputy Director, TB, without publication of interview. If yes, does the Government  propose to  make an  inquiry into  this ? If yes, why  has it not been made till date ?", Minister Health and Family  Welfare Department  stated that the appointments were  made   "after  following   all  procedure"  which  was contained in  letters dated 17.2.1983, 25.3.1983, 24.7.1984, 17.10.1984, 31.12.1986  and 31.1.1987. The matter again came before  the  Assembly  on  21.1.1987,  when  another  M.L.A. desired to  know from  the Minister  of  Health  and  Family Welfare whether  about  800  employees  had  been  appointed

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against different  class III  and IV  posts illegally by the Director, TB,  Dr. A.  Mallik, between  1977 and  1987.  The further question  was if  this were  to be a fact, "does the Government propose to hold an inquiry against Dr. Mallik for Making illegal  appointments  and  illegal  accumulation  of wealth. If  not, why  ?" The  reply of the Minister was that appointment had been made "in regular manner against created sanctioned vacant posts.". The Minister further stated that, therefore,  "question   of  illegal  appointments  does  not arise". 21.  Shri Verma  would not like us to place much reliance on what was  stated on  the floor  of the Assembly, because the questions had  been answered, as per the State’s case put up in  counter-affidavit   filed  here,   on  the   information furnished  by  Dr.  A.A.  Mallik  himself.  However,  as  on subsequent  inquiry  it  was  found  that  all  informations furnished by  Dr. Mallik  were false,  a fresh communication was addressed by the Department to the Assembly. 22.  I would  not accept  this stance  taken in the counter- affidavit for  various reasons.  The first  is  that  it  is beyond comprehension  that a  question relating  to  alleged illegal activities  of Dr.  Mallik would  be answered  by  a Minister on  the floor  of House on the basis of information supplied  by  none  else  than  Dr.  Mallik.  Secondly,  the counter-affidavit has  been sworn  on behalf of the State by Director  (Administration,   Health  Services,   whereas  an affidavit on  behalf of  the State  is to  be  sworn  by  an officer of  the Secretariat.  Thirdly, there  is nothing  on record to  satisfy that  the fresh  information collected on subsequent  inquiry   had  really   been  furnished  by  the Department to the Assembly. 23.  The aforesaid  contention of  Shri Shanti  Bhushan  was buttressed  by  other  learned  counsel  appearing  for  the appellants by  drawing by  attention, inter  alia, to a writ proceeding before the Patna High Court which shows that on a direction being  given by  the Court  to  pay  to  the  writ petitioners in  question  their  wages,  if  they  had  been regularly appointed,  the High  Court was  informed that, on enquiry being  made, it  was found that the writ petitioners had been regularly appointed. 24.  There are  also on  record of  some  cases  minutes  of Selection Committee  consisting of  Deputy Director,  Health Service (TB),  Assistant Director  (Philoria  Control);  and Senior-most SC/ST  officer working  under the  TB programme. This is the composition of the Selection Committee meant for making regular  appointments to  class III  & IV posts under Tuberculosis Control  Programme, as  would appear  from  the Government communication  of 25.3.1983,  which is one of the letters mentioned  by the  Minister  on  14.7.1987  when  he answered the  Assembly question.  It is, of course, true, as pointed out  by Shri  Verma, that in the papers as filed, at the place  of signatures  "Sd/-" appears. The explanation of the concerned  counsel is that this had happened because the signatures of  the concerned  person were not legible. It is also urged that the appellants, having had no custody of the original records,  could lay  their hands  on a  document of this nature  only. The  original of  the document  not being available to  us, which may be because of the burning of all records  in   the  fire   which  took  place  in  the  State Secretariat, it  cannot be  held that  the concerned persons were regularised  after proper  selection. But then, in some cases Selection  Committee did  examine the  candidature  of concerned persons  and  they  had  come  to  be  regularised pursuant to the recommendation of the selection committee. 25.  In the  aforesaid permises,  i  would  not  accept  the

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contention  advanced   on  behalf  of  the  State  that  the procedure visualised  by the  O.M. of 3rd December, 1980 was not followed  at all  while regularising  the appellants. Of course, the  materials on  record do  not permit to say that the  procedure   had  been  followed  in  case  of  all  the appellants. 26.  Whether non-advertisement  of the  posts introduced any infirmity?      Shri Shanti Bhushan contends that as per the law summed up in  Piara Singh’s case, advertisement is not a must. Shri Verma,  submits   that  unless  the  posts  are  advertised, eligible persons  would not  know about  the availability of post, and  so, it  has to  be there.  Para 47 of Piara Singh makes this  position clear,  as it states that a notice must be published  in this  regard in  appropriate  manner.  This publication could be, in appropriate cases, on notice boards also, according to me. 27.  The aforesaid  being the position, I am statisfied that the posts  were required to be advertised. This, however, is an ordinary  requirement, which  would be  apparent from the word "ordinarily"  finding place  in para 47. This apart, it would appear that the news was published on the notice board of some  offices. I  would accept  this as sufficient in the facts and  circumstances  of  the  present  case.  The  non- advertisement of  the posts  in newspapers  had,  therefore, caused no infirmity to the regularisation. 28.  Whether non-information  to the employment exchange for filling up the posts caused any dent to the appointments ?      Para 47  of Piara  Singh’s case states that where an ad hoc or  temporary employment  is necessitated  on account of exigency of  administration, the  incumbent should  be drawn from the  employment exchange.  This requirement has a rider namely, "unless  it cannot  brook delay". As already stated, there was  a pressing cause here, which is almost writ large on the  face of  the  record.  The  non-information  to  the employment exchange  had, therefore,  caused no  dent to the appointments. 29.  Was  there   non-reservation  of  posts  for  Scheduled Castes/Scheduled Tribes?  If so, whether the same introduced any  legality   in  the   appointment  of  general  category candidates ?      The facts  as unfolded in the present appeals show that posts had  in fact  been reserved.  In  one  TB  Centre,  16 Scheduled Castes,  5 Scheduled Tribes, 16 Backward I, and 14 backward II  came to  be appointed,  along with  16  general category candidates. This tabulation is at page 143 of paper book in  SLP(C) Nos.12934-35 of 1994. A perusal of the paper book in  SLP(C) Nos.13203-13  of 1994  shows that  Scheduled Castes/Scheduled Tribes  candidates were  appointed  to  the posts of  B.C.G. Technicians. The annexure at Page 116 gives the names  of such  candidates, and the list at pages 117 to 119 shows that there were many Backward Class I and Backward Class II appointees also. This shows that there was not only reservation for  Scheduled Castes  and Scheduled  Tribes but appointments too  had been given. That this was the position in all  the centres  cannot, however, be known from material on record.  The appellants’  counsel are justified in saying that they  could not  have produced  documents to show as to how this  requirement was  satisfied in all the centres. The burden of  proving this conclusively cannot be thrown on the appellants,  as   after  all  it  is  the  State  which  had terminated their  services, inter  alia, on this ground, and so, the  burden has really to be discharged by the State, to do which virtually nothing has been done, may be because the Secretariat records having been burnt, nothing is available.

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It may,  however, be  that the  District Records  could have perhaps thrown some light, but they were shown no light. 30.  The materials  available show there was reservation for SC/ST candidates.  The question of illegality in appointment of general  candidates on the ground of non reservation does not, therefore, arise. 31.  Whether the  regularisation had  been made  pursuant to recommendation of  the Selection Committee visualised by the aforesaid OM ?      This aspect has already been dealt above. To reiterate, there are  materials on  record to  show that  in some cases regularisation was  pursuant  to  the  recommendation  of  a properly constituted  Selection Committee.  I  am  conscious that one  swallow does  not make a summer. But then, to have required the  appellants to  bring on record the proceedings of other Selection Committees, if there were any, would have placed an  unjustified burden  on them. What has been stated above about  the State’s  burden applies  qua this  question also. 32.  Whether non-preparation  of any  panel by the Selection Committee provided  a good ground to regard the appointments as violative of the prescribed procedure?      A perusal  of the  O.M. of 3rd December, 1980 does show that the Selection Committee was required to prepare a merit list. That  such a  merit list/panel  was prepared  in  some cases would  be evident  from a perusal of the paper book in SLP(C) Nos.  13203-13 of  1994. But  then, it cannot be said that this  was done  in all  cases. Even so, for the reasons already alluded  which would  apply proprio  vigore to  this aspect also,  there is no justification in finding infirmity in all  the appointments  because of  lack of  materials  on record to  show that  the appointments had been made without preparation of merit list/panel. 33.  Whether natural  justice had  been complied with before termination of the services of the appellants?      What are the requirements of the natural justice cannot be laid  down in any straight jacket. This is a well settled position in  law. The facts and circumstances of the case in question would  alone provide  the  answer  whether  natural justice has  been complied  with or  not. This  is  so  well settled position  by now  that I do not propose to advert to any case law on this subject. 34.  It is  equally well  settled that  where adverse  civil consequences follow  pursuant to  an order  of an authority, natural justice  has to  be complied  with ordinarily.  Law, however, permits exclusion of natural justice in some cases, like urgency.  Shri Verma  submits that  present is  a  case where natural  justice got  excluded because  of adoption of unfair means  while seeking  appoints. In  support  of  this contention, strong  reliance is  placed on  the decision  of this court  in Bihar  School Examination  Board vs.  Subhash Chandra Sinha  and others,  1970 (3)  SCR 963.  According to Shri Shanti  Bhushan, this  decision has  not said  anything contrary to  the well  settled principle  that where adverse civil consequences follow natural justice has to be complied with. 35.  Let it  be seen  which  of  the  aforesaid  contentions merits acceptance. In the aforesaid case this Court examined the question whether notice to the respondents was necessary before cancellation of their examination because of adoption of unfair  means at  an examination  centre. The question of giving notice required examination, as it was contended that natural justice required the same. On the facts of that case it was  held that  notice was  snot necessary. This view was taken because  the Court  was satisfied  about  adoption  of

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unfair means,  relating to  which an independent enquiry had been held  by Unfair Means Committee of the appellant Board. Shri Verma  states that  as in  the present  case  also  the appellant has  adopted unfair  means, no notice was required to be given. 36.  A close perusal of the judgment shows that that was not a case  of any  particular  individual  being  charged  with adoption of  unfair means,  but of  the conduct  of all  the examinees or a vast majority of them at a particular centre. The Court  raised a  poser that  as the  question was not of charging any one individual with unfair means but to condemn the examination  as ineffective for the purpose it was held, must  the  Board  have  given  an  opportunity  to  all  the candidates to  represent their  cases? The  Court thought it was not  necessary, because  the examination  as a whole was being cancelled.  It was  further observed that as the Board had not  charged any  one with unfair means so that he could claim to  defend himself.  It was, therefore, concluded that it would  be wrong  to insist  that the  Board must  hold  a detailed enquiry  into the  matter and  examine each case to satisfy itself  which of  the  candidates  had  not  adopted unfair means. 37.  The facts of the present case are poles apart. Here the allegation is undoubtedly against each appellant. Even if it were to  be that  some among  them had adopted unfair means, the appointments of others could not be set aside because of that. It  was not  a question  of  some  illegality  of  the general  nature  like  adoption  of  a  wrong  procedure  in selection, like  fixing of  very high  percentage marks  for viva voce.  It may  be that  a case where such illegality is committed, individual  notice would  not  be  necessary.  I, therefore, do  not think  if the  ratio in Subhash Chandra’s case could  assist the  State  to  contend  that  individual notice was not necessary. 38.  I may  deal with  another decision pressed into service by  Shri   Verma  in   this  context.   The  same   is  S.K. Balasubramanian vs.  State of  Tamilnadu, 1991  (2) SCC 708. The learned  counsel has  read out  to me from this decision paragraph 9  at pages 713 and 714 and contended that because what has  been stated therein, it could be said that even if an order is invalid, there would be no question of affording an opportunity  of hearing.  I am  afraid that  the  learned counsel has  misunderstood the  purport  of  what  has  been stated therein.  I have  said so  because a  perusal of that para shows  that this  Court had  said about  no question of affording an  opportunity  of  hearing  to  the  petitioners before passing  the impugned  order  dated  March  3,  1980, because the  Court found  that that  order  was  founded  on Government orders dated November 16, 1976 and June 15, 1977, which were  invalid according  to the  Court as those orders had altered the principle of fixation of seniority contained in Rule  35 of the General Rules, which could have been done only by  suitably amending  the Rule,  and  not  by  issuing administrative instructions.  Having found that the order in favour of the petitioners dated March 3, 1980 was founded on untenable principle  of fixation  of  seniority,  the  court said, and  with respect  rightly, that  no  opportunity  was required to  be given  to  the  petitioners  who  sought  to support  their  seniority  position  on  the  principles  as embodied in  the Orders dated November 16, 1976 and June 15, 1977. the foundation of the order dated March 3, 1980 having fallen to  the ground,  no opportunity  was necessary  to be given to  sustain the  order dated  March 3,  1980, as  that order was  founded on  wrong principles  of seniority.  This being the  position, I  would indeed say that Shri Verma may

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not have advanced this contention. 39.  Having held  that natural justice was not excluded, let it be  known what  was done  to satisfy  this in the present cases. Materials  on record  show that  at first attempt was made to  service individual  notices, whereupon  the serving persons were  even mis-handled;  so, recourse  was taken  to newspaper publication.  This was  done in  some Hindi  local newspapers. It  is on  record that pursuant to the notice so given good  number of  persons likely  to  be  affected  had appeared before the aforesaid Committee. It may be that some persons did  not  appear  before  the  screening  committee, despite knowledge of the same. From the materials on record, we are not in a position to know what is the total number of such persons. 40.  To satisfy  whether newspaper publication substantially complied with  the requirement  of natural  justice, we  had desired to know from Shri Verma which were these newspapers, what  was   their  circulation   and  at  which  places  the newspapers had  circulation. Shri  Verma could not throw any light on  these aspects.  His contention was that as some of the affected persons had known about the publication, we may presume that  they must  have informed their colleagues, and the news must have spread like a wild fire. I would demur to accept these  contentions. It  has also been noted that some of the  incumbents had  read only upto Class IV, which would show that  they are  not literate  and enlightened enough to read newspapers as a habit. 41.  So,  despite   my  being  satisfied  that  a  case  for newspaper publication  was made out, as on effort being made to serve  individual  notices,  there  was  non-handling  of serving persons,  the publication of the type undertaken did not, however,  satisfy the  call of  natural justice.  As no fetish should  be made  about natural justice, it should not be allowed  to become  farce also. The giving of opportunity to show-cause  in the  present cases  having been made known through newspapers,  I do  think that  the opportunity given was not  adequate and  reasonable. Even  so, I have not felt inclined to  set aside the termination order on this ground, as we  ourselves heard the appellants, which can be taken as a sort  of post-decisional  opportunity, which could be said to have met the requirement of natural justice. CONCLUSION 42.  Having expressed  my views  on the questions of law and fact I would conclude as below. 43.  Broadly stated,  the position  is that  Dr. Mallik  had undoubtedly out-stepped  confines  of  his  powers  and  had betrayed the  confidence reposed  in him.  I  have  said  so because it  is clear  that as  against about 2500 sanctioned postes, he was instrumental in giving/directing appointments to about  6000 persons.  But I  am clear in my mind that all the persons so employed had not aided, abetted or instigated Dr. Mallik in doing so. The difficulty is that we are not in a position  to find out who the aiders/abetters were. If the State could  have made  efforts to  find this  aspect,  with reference to the records which should have been available at the District  Headquarters/TB Centres,  it should  have been possible to  find out,  who among  the 6000 and odd persons, had been  legally or  validly appointed.  This has, however, not been  done. The  question is  whether despite  this  in- action or  non-action, there  is justification in taking the view that the 1363 appellants before us were among those who were illegally  appointed. The State counsel submits that we should hold  so; Shri  Shanti Bhushan contends that there is no basis to hold so. 44.  I  have  given  my  considered  thought  to  this  all-

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important aspect  of the case and, according to me, as about 2500 persons could have been appointed by Dr. Mallik, and as there  are   materials  on   record  to  show  that  regular appointments had  also been  made (how many, we do not know) and as  it  is  not  possible  to  know  who  the  regularly appointed  persons  were,  facts  permit  to  say  that  the appellants before  us, whose  number is  1363, may  be among those who were regularly appointed. I have thought it fit to take this  view because  of the mandate in Article 21 of the Constitution, which  would not permit taking away livelihood of so many of the incumbents unless satisfied that they were among the  persons who  had not  been  legally  and  validly appointed. It  deserves to  be pointed out that as the State has taken  away the  rights which  had come to inhere in the appellants, the  primary burden is on the State to establish that illegality had been committed in giving appointments to the appellants. This burden the State has undoubtedly failed to discharge qua the appellants. The benefit of the same has to be made available to them. 45.  I would  further say  that in  such  matters  there  is (some) justification  to keep  human consideration  also  in mind, as  urged by  Shri Shanti Bhushan by referring to H.C. Puttaswamy vs.  Hon’ble the  Chief Justice,  Karnataka  High Court, 190  (Supp) 2  SCR 552.  In  that  case  this  Court, despite having regarded the impugned appointment as invalid, refused  to  recognise  the  consequence  which  would  have involved uprooting  of the  appellants, because  of which it adopted a  humanitarian approach,  as it  was felt  that the appellants "seem  to deserve  justice ruled  by mercy".  Not only this,  the Court  went to  the extent of giving all the benefits of  past service  after stating that the appellants shall be  treated to  have  been  regularly  appointed.  The learned counsel  prays that  we may  view the  cases at hand also similarly,  as any  adverse  order  would  uproot  1363 families inasmuch  as virtually  all the appellants are from poorer section  of the  society and  it may well be that the concerned families  have no  other bread-earner. I have felt inclined  to   bear  this   aspect  also   in  mind,  albeit tangentially. Having  noted that  materials on record do not permit to hold that the appellants were among those who were appointed beyond the sanctioned strength, my conscience does not permit  to punish  them for the wrong or sin which might have been committed by others. 46.  According to  me, therefore,  the legal, just, fair and reasonable order  to be  passed in these appeals would be to say that  all the  1363 appellants  would be  deemed to have been regularly  appointed and  I would, therefore, set aside the termination  order qua  them. It is made clear that this order would  not in any way be taken advantage of by anybody except 1363 appellants before us. 47.  The appeals  are, therefore,  allowed by  setting aside the termination order qua the appellants alone and directing the reinstatement  of all  them. Appropriate  orders in this regard would  be passed  within two  months from  today. The appellants would  not, however,  be paid  any amount towards back  wages/salaries,  but  they  would  get  other  service benefits. 48.  Before parting,  I would observe that nothing stated by me relating  to the appellants would enure to the benefit of Dr. Mallik  in the on going inquiry against him. It would be concluded as  per the materials collected or to be collected and the  inquiry against  him would take its own course. Not only this,  I would  desire the  conclusion of  the  inquiry against Dr. Mallik most expeditiously.

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