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PETITIONER: ASHWANI KUMAR & ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS. ETC. ETC.

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.13203-13/94, 13137-40/94, 13933- 34/94, 14009-30/94,  14031-36/94, 14037-42/94,  14050-61/94, 16237-38/94, 15281-435/94,  17114/94, 17292-94/94, 17459/94, 19408-94, 21949/94,  22649/94, 23059/94, 22650/69/94, 22671- 77/94, 22678-87/94,  22688-92/94, 1041/95,  1243-45/95,  SLP [C] No.  26273-74 [CC 255]/95, SLP No.2/95, 7912/95, [C] No. 26275 [CC 974]/95, SLP [C] No. 7095/95, 7912/95, SLP [C] No. 26276 [CC No. 1557]/95, SLP 66/95, 13548/95 and 8900/95]                       J U D G M E N T K. RAMASWAMY, J.      Leave granted.      This bunch of appeals pertains to 1363 employees, viz., Clerks [Class  III] and Attendants [Class IV]. All the cases arise from  judgment of  Division Bench  of the  Patna  High Court dated  May 6,  1994 in  C.W.J.C. No.5163/93 and batch. The principal  villain behind  the scene  is  one  Dr.  A.A. Mallick,  Deputy   Director,  Health   Department   of   the Government of  Bihar, in  charge  of  Tuberculosis.  He  was Director of the Tuberculosis Centre at Patna. Eradication of Tuberculosis was taken up as a part of 20-Point Programme in Planned Expenditure.  The  activities  in  the  Tuberculosis Centre at  Patna were  extended to  various districts. Since Mallick happened  to be  the Director  of the Centre, he was made Deputy  Director of the Scheme. The Government had also issued directions  to the District Medical Officers to abide by the  instructions of  Mallick in  implementation  of  the programme.  He  was  made  the  Chairman  of  the  Selection Committee  constituted   by  the  Government  consisting  of himself,  Assistant  Director  of  Pilaria  and  the  senior officer representing  Scheduled Castes/Scheduled  Tribes  to recruit 2250  posts of  Class III  and  Class  IV  employees created to implement the Scheme in addition to around 800 to 900  staff   in  Patna  Centre  in  all  categories.  Taking advantage thereof,  the undisputed  fact  is  that,  he  had

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appointed around  6000 [as found by the Committee] while the Government asserts them to be approximately 7000. Be that as it may, not less than 6000 persons were appointed by Mallick without any  written orders.  He directed many of them to be adjusted by  transfer by  District Medical Officers and some of them  had  produced  fabricated  appointment  orders.  He shuffled their  payment of  salaries like  musical chairs by turns. Another  device adopted  in the sordid episode was to make the  employees go  on strike  and when  some  sensitive M.L.As. raised  the question,  on the  floor  of  the  State Legislative  Assembly,   of  illegal  appointments  made  by Mallick, the Government initially swallowed the appointments to be legal and had justified his action to be valid. Later, when facts  themselves proved  their faulty  admission, they made amends  before the  Assembly and the Government made an elaborate statement apprising the House that the information furnished earlier was not correct.      Due to  the agitation, the Director and Joint Secretary to the  Government, Health  department had issued directions to regularise  the services  of daily-rated  Class  III  and Class IV  employees. Taking  aid thereof, it is claimed that regularisation  of  many  of  them  including  most  of  the appellants,  was  made.  When  alarming  bells  rang  around portals of  Patna High Court, filling petition under Article 226 of  the Constitution  seeking payment  of salaries,  the High Court,  though initially  in  some  cases  directed  to enquire into  the cases  and to pay salaries, later found it difficult to  cope up with the situation. So it directed the Government to  constitute an  enquiry committee  to find out whether the  appointments made  by Mallick were valid and if so, to pay salary to such employees.      In the  meanwhile, the  Government  also  directed  the VIgilance Department  to enquire  into the matter and on May 7, 1991,  the Vigilance department in its report pointed out that Mallick  had violated  the rules  of recruitment and in collusion with  other  officers  had  appointed  daily-rated Class III  and Class IV employees. Pursuant to the direction of the  High Court,  a Screening  Committee was  constituted which sought  to serve  notice on  the employees.  When  the Deputy Director  went to  the Centre  at Patna  to serve the notice on  the employees, he was man-handled resulting in an ugly law  and order  situation. In consequence, notices were published on  two different  dates in  different  newspapers inviting submission  of the  claims  by  all  the  employees appointed by  Mallick,  together  with  supporting  material justifying their appointments. Different dates of hearing by the Committee  were staggered.  About 987 employees appeared before the  Committee and submitted their statements. In the meanwhile, relevant  records were  burnt out. The High Power Committee in the absence of authentic record was constrained to depend  upon the  statements made by the employees before it. After  hearing them  and considering  the record  placed before it, the Committee found that Mallick did not make any order of  appointment  on  daily-wage  basis.  It  found  it difficult to accept even the orders of confirmation. In that view, the Committee found that the initial appointments made by Mallick  were in  violation of the instructions issued by the Government.  Therefore, they  were found  to be  illegal appointments.  The   Committee  also   found  that   Mallick circumvented the  rules by  making  adjustment  by  transfer without  verifying   the  qualifications,   eligibility   or disclosing previous  places whereat the candidates appointed had  worked   and  dates   of  their   appointment  and   by transferring them  to the  respective places  by cyclostyled orders. He  directed the District Medical Officers to verify

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their credentials  and then  to appoint them temporarily. As stated earlier,  the ’Committee  also noted  that the  third category of  persons appointed  were by producing fabricated orders of  appointment. Consequently,  it directed to cancel all the  appointments made  by Mallick.  On receipt  of  the report and  on its  consideration, the Government found them to be  invalid and  illegal and  all the  appointments  were cancelled. When  their legality  was questioned  in the writ petitions filed  under Art.226,  the High  Court upheld  the Government action. Thus these appeals by special leave.      The main fervent thrust of Shri Shanti Bhushan, learned senior counsel  and  his  colleagues  who  echoed  him  with forceful pursuation  is that  casual appointments are not to any posts.  Eradication of tuberculosis urgently required to be done  on war-footing  which relieved  Mallick to dispense with  normal   procedure  of   recruitment.  Mallick,  being exclusive centralised  authority to  appoint Class  III  and Class IV  casual employees,  he had picked up the candidates who applied  for appointment pursuant to notification put up on the  office  notice  Board  at  Patna  Centre.  They  had discharged their duties, many of them meritoriously and were later promoted  to higher  posts. Security  of tenure  is  a Constitutional  right   and  regularisation  of  service  is inherent in  it. The Director of Health Department-cum-Joint Secretary to  the Government  had directed regularisation of all those  who had  completed three  years’ service,  and of those with  less than  two years’ service regularisation was to be  done to  the extent  of  available  vacant  posts  on seniority basis. The procedure for recruitment prescribed in the instructions  dated December  3, 1980  and November  25, 1982 does  not apply  to regularisation.  No statutory rules need to  exist for  initial appointment.  The administrative instructions issued  by the  Government in  1980, 1982, 1983 and  1986   circulars   could   be   modified   by   further administrative instructions. The instructions and directions contained in  letters dated  October 10,  1985, January  19, 1986 and  February 12,  1987 were  special rules,  which are exceptions to  general directions  for regularisation of the services of  daily-rated employees. In compliance therewith, their services  were duly  regularised. The need, therefore, to follow  the procedure  prescribed in  1980, 1982 and 1983 circulars would not arise. They would be applicable only for regular recruitment  to other  posts. Since the appointments by  Mallick  have  been  made  by  regularisation  of  their services, the  same were  valid. Pursuant  to  a  notice  of motion given by M.L.As, the Government admitted on the floor of the  Legislative Assembly,  that the appointments made by Mallick were legal and valid. The appellants were in dark as to whether  their appointments  were in  accordance with the prescribed  procedure.   Even  if   the   instructions   are considered mandatory,  when their violation would visit with deprivation of  employment to the daily-rated employees, the appellants had no control over the procedure for recruitment or  regularisation   and  so   the  instructions  should  be construed to  be directory. Having accepted the appointments made by  mallick as  valid, it  would not  be  open  to  the Government   to    contend   that    the   appointments   or regularisation are  invalid or in violation of the procedure of inviting the applications by advertisement or calling the names  from  employment  exchange.  The  omission  to  adopt selection process  is not invalid. To regularise the service of the  appellants and  others, the procedure prescribed for initial recruitment  does not  apply. The  respondents  were merely required to regularise the services of the appellants and others  though the  initial appointments  were  made  de

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horse the  rules. The  regularisation of the services of the appellants is,  therefore, legal  and valid  which cannot be given a  go-bye and  the Court  would  not  countenance  the contention  of   the  Government  that  either  the  initial appointments or regularisation are invalid and illegal.      Since no  notice was  served personally  on any  of the appellants, the  procedure of  publication of  the notice in the daily newspapers informing the appellants to come before the  High   Committee  constituted  by  the  Government  for scrutiny of the validity of appointments made by Mallick are violative of  the principles of natural justice. Many of the employees might  not have  read the  newspapers and  nothing prevented the  State to have the notice served individually. Under these  circumstances,  many  an  appellant  could  not appear   before   the   Committee.   Those   persons   whose appointments were  regularised had weeded out their previous record  of   appointment  and   service  record.   Statutory presumption under  Section 114(e) of the Indian Evidence Act that official  acts  were  regularly  performed  by  Mallick proves that  the appointments  by regularisation were valid. it  is   for  the  Government  to  establish  that  all  the appointments were  not made  in accordance  with  the  rules which burden  the government  had failed  to discharge.  The appellants cannot  be penalised  for non-production  of  the records. They  had worked  for sufficiently  long time which itself creates  a right  in their  favour for regularisation which was  done and orders had become final. It is no longer open for  the State  to contend that the appointments of the appellants were not valid or legal.      When regularisation was to be made, the need to publish the vacancies  in a  newspaper etc. and advertisement in the newspaper or  to call names from the employment exchange was obviated lest it would amount to fresh recruitment which was not  contemplated  under  the  instructions  issued  by  the Government. When no procedure was prescribed for appointment of casual  employees, mere  working for long period as found in  the   muster   rolls,   would   give   them   right   to regularisation. There is no prescribed form for appointment. There  was   no  need   to  issue  letters  of  appointment. Appellants having  worked for  6 to 8 years, their dismissal would amount  to inflicting punishment without following the procedure. It  is not  the case  of the  Government that the appellants  are   neither  qualified  nor  found  unfit  for appointment. Violation of the procedure for appointment does not  render   the  appointments,  even  assuming  they  were illegally  made,  void.  At  best,  they  would  be  curable irregularity.   Regularisation   cured   the   defect.   The appellants who  worked for  long period  as clerks and peons would  acquire   vested  right   for  their  regularisation. Government can  even suo  motto  regularise  their  services which does  not violate  Articles  14  and  16  (1)  of  the Constitution. Those  who were  awaiting regular  recruitment could challenge  the procedure  for appointment  adopted  by Mallick to  be illegal.  But the  same would not be a ground for  the  Government  to  take  such  a  stand.  The  indoor management between  the government and its officers would be known to  them and its infraction would be only a ground for the Government  to proceed  departmentally against concerned erring officers  under conduct  and discipline rules but the employees should not be penalised nor should the security of service be  jeopardised for violation of either the rules or the procedure  by the  competent officer  for making initial appointment or  regularisation. Even if rules of reservation were not  followed, appropriate directions might be given to follow them  and fill  the posts reserved for the respective

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quota of  Scheduled Castes,  Scheduled Tribes  and  Backward Classes. The High Court, therefore, had not considered these Constitutional perspectives  in its judgments in that proper compass before  dismissing the  writ petitions. Sri P.P. Rao and others  while supporting  the above  contentions,  high- lighted them  with reference to the facets of cases in which they appeared.      In two  sets of  individual cases, the learned counsel, M/s. Sharan,L.R.  Singh, Ranjit  Kumar and Parag P. Tripathi argued with  reference to  the special facts in their cases. In the  first set,  it  was  contended  that  their  initial appointments were  in accordance with the procedure followed by a  committee constituted  for selection.  They were later regularised. In support of the contention, they filed charts giving the  dates of initial appointments, regularisation as open or  reserved  candidates  and  among  the  latter,  the prescribed categories  thereof. They  have  also  placed  on record certain  daily-wage muster register said to have been maintained by  the Department.  Shri Tripathi further stated that in  writ petitions  filed by  63 appellants,  the  High Court had  directed the  Government to  enquire whether they were regularly  and validly appointed and if they were found to be  so appointed,  directed the  Government to pay salary for the  period they had worked. Consequent thereto, another officer had  enquired and  certified that their appointments were validly made. There was, therefore, no need for them to appear before the Committee to justify the validity of their appointments. The  committee or  the Government had not gone into this question. Their termination, therefore, is invalid in law.  Shri Verma  appearing for  the State  resisted  all these contentions.  We  have  given  our  anxious  and  deep consideration and carefully scanned the record placed before us.      In T.  Cajee vs.  U. Jormanik Siem & Anr. [(1961) 1 SCR 750 at 764] a Constitution Bench of this Court held that the Government has  the power  to carry  on  the  administration including the  power to appoint and remove the personnel for carrying on  the administration.  It is  not necessary  that there should exist statutory regulations so made or the laws so passed.  The authorities  concerned would at all relevant times have  the power  to appoint  or remove  the  personnel under the general power of administration vested in them.      In B.N.  Nagarajan &  Ors. vs.  State of  Mysore & Ors. [(1966) 3 SCR 682], another Constitution Bench of this Court held that it was not obligatory under proviso to Article 309 of the Constitution to make rules of recruitment etc. before a service  could be constituted or a post created or filled. Consequently, the  State Government  has executive power, in relation  to   all  matters   with  respect   to  which  the Legislature of  the State  had power  to make  laws and  its power under Article 162, without a law, was not a breach.      In P.C.  Sethi & Ors. vs. Union of India & Ors. [(1975) 3 SCR  201], a  three-Judge Bench of this Court held that in the absence  of any  statutory rules  prior to  the  Central Secretariat  Service   Rules,  1962,  it  was  open  to  the Government, in  exercise of  its executive  power, to  issue administrative instructions  with regard to constitution and reorganisation of  the Service  as  long  as  there  was  no violation of Articles 14 and 16 of the Constitution.      In Ramesh  Prasad Singh  vs.  State  of  Bihar  &  Ors. [(1978) 1  SCC 37  at 41],  a two-Judge  Bench of this Court held that in the absence of rules, qualifications for a post can validly  be laid  down in  the self-same executive order creating the  service or post and filling it up according to those qualifications.

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    In Kamal  Kanti Dutta  & Ors. vs. Union of India & Ors. [(1980) 3  SCR 811  at 849]  yet another  Constitution Bench observed that  the Government  would prescribe  procedure to fill up  any particular  vacancy  or  vacancies  as  may  be required during any particular period. In State of Haryana & Ors. vs. Piara Singh & Ors. [(1992) 4 SCC 118] a three-Judge Bench of  this Court  held in  para  21  at  page  134  that "creation and  abolition of a post is the prerogative of the Executive. It  is the  Executive again  that lays  down  the conditions of  service subject,  of course, to a law made by the appropriate  legislature. This  power to  prescribe  the conditions of  service can  be exercised  either  by  making rules under  the proviso  to Article 309 of the Constitution or   [in   the   absence   of   such   rules]   by   issuing rules/instructions in  exercise of  its executive power. The court comes  into  picture  only  to  ensure  observance  of fundamental rights,  statutory provisions,  rules and  other instructions, if  any, governing the conditions of service." This Court  laid down elaborate procedure for regularisation of ad hoc employees etc.      It would  thus be  settled law that existence of law or statutory rules  made under  proviso to  Article 309  of the Constitution is  not a pre-condition either to create a post or to  fill up  that  post;  Government  having  legislative backing on  the subject, has executive power to lay down the conditions  of   service   and   prescribe   procedure   for appointment  to   the  post   or  vacancies   in  accordance therewith. Simultaneously,  the Government would be entitled to create  posts. The  instructions and  the procedure  thus laid down would be subject to law made by the Legislature of rules made  under proviso  to Article  309.  They  could  be amended by  subsequent instructions.  They may  suppland the rules.  But  they  should  be  consistent  with  the  rights guaranteed under Articles 14 and 16 (1) of the Constitution.      The forceful contention of Shri Shanti Bhushan that the casual employees  of Class  III and  Class IV:  Clerical and Attendant Cadres,  are required  to  be  appointed  on  war- footing  to   eradicate  tuberculosis,   does   snot   carry conviction for  acceptance  for  the  reason  that  20-Point Programme was  initiated in  1976 while  the appointment  of causal employees came to be made in 1981 onwards. Therefore, the emphasis  on immediacy  and war-footing like floods lost their forward  push. The  strong wind of the contention that employment of  daily-rated employees  is not to a post loses from the  sail when  we  peep  into  the  pleadings  of  the appellants themselves.  In  Sateyndra  Kumar  Singh’s  case, viz., C.A.  @ SLP Nos.14009-30 of 1994, in which Shri Shanti Bhushan has  appeared, the  appellants  themselves  admitted that they  were appointed  to the  post as casual employees. Similar are  the admissions  in all  the appeals. Therefore, the need  to make specific reference is obviated. It is also an admitted  position, though  sought  to  be  qualified  in reply, that no dates were given of creation of existing 2250 Class III  and Class IV: Clerical and Attendant posts. As to when they  were created was not in issue at any stage. So at this belated stage it is difficult to adjudge as to when the posts were  created. So we proceed on the premise that posts in Class III & Class IV do exist when they were filled up by casual employees.  Strong reliance  was placed by Sri Shanti Bhushan on  the Constitution Bench decision of this Court in State of Assam & Ors. vs. Shri Kanak Chandra Dutta [(1967) 1 SCR 679  at 682]  where it was held that a post is a service or employment.  A person  holding a  post under a State is a person serving  or employed  under the  State. A post may be created before appointment or simultaneously with it. A post

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is an  employment but  every employment  is not  a  post.  A casual laborer  is not  the holder of the post. A post under State means  a post  under the administrative control of the State. The  State may  create or  abolish the  post and  may regulate the  conditions of service of the persons appointed to the  post. The  emphasis was placed by the counsel on the sentence "a casual laborer is not the holder of a post". Sri Verma contended that in Union of India & Ors. vs. Deep Chand Pandey & Anr. [(1992) 4 SCC 432] under Section 14 (1) of the Administrative tribunals Act, it was contended that a typist engaged on casual basis was not holding any civil post under the  Union   of  India  and  therefore,  the  Administrative tribunals Act was not attracted. A three-Judge Bench of this Court repelled  the contention  in paragraph  3 holding that "we do  not find  any merit in this stand taken on behalf of the respondents."  The argument  of Shri  Shanti Bhushan  is that there  is no  finding there  in that the employees were the holders  of the  civil post  but the Court was concerned only with  the jurisdiction  of the Tribunal who entertained the claims  under the  Administrative Tribunals Act. In that context, the  contention was  to be  of  the  power  of  the Tribunal or  the High  Court which was negatived. We find no force in  the contention of Sri Shanti Bhushan. Unless he is a holder of a post, the power to adjudicate the right to the post by  the Tribunal  does not arise. The Bench, therefore, arrived at a base finding that he holds a civil post for the purpose of deciding the jurisdiction of the Tribunal.      In R.N.A.  Britto vs.  Chief Executive  Officer &  Ors. [(1995) 4  SCC 8],  Secretaries  of  Panchayats  established under the  Karnataka Village  and Local Boards Act were held to hold  civil posts  and were  Government servants.  It  is common knowledge  that  the  system  of  appointing  several persons on  ad hoc  or casual  basis to civil posts has been considerably changed.  In fact, the P.W.D. Manual prescribes employment  of   casual  labour,   muster  roll   labour  or contingent labour  - be  it skilled  or Manual.  The Central Public Works  Department Manual  itself  prescribes  such  a procedure and  the wages  to them  are paid  from contingent fund. The  power to engage casual labour is conferred on the Executive Engineer  when the  need exists for six months and if it  is for  more than  six months  and less  than a year, prior approval  would be  taken  from  the  concerned  Chief Engineer or  the Director  General, as  the case may be. The employment of  the employees  shall be  of those  drawn from employment exchange.  That is  the common feature in all the State Public Works Departments. It is settled law that part- time extra  departmental agents  are holder  of a civil post vide Superintendent  of Post  Offices  etc.  etc.  vs.  P.K. Rajamma etc.  etc. [(1977)  3 SCR  678].  In  Kanak  Chandra Dutta’s case  [supra] casual  laborer appears  to have meant with  reference   to  the   emergent  engagement  of  casual labourers which  do not  last for more than six months. This Court had  dealt with  catena of cases in which appointments to countless  Class III  and Class  IV posts under the State and Union  Government had  been made on daily-wage or casual basis. But  in non  of the cases this Court came across that there  was   no  posts   exist  or  no  initial  letters  of appointment given  to the  daily-rated or casual employment. We, therefore,  need not  burden the  judgment with  copious citation  of  all  the  decisions.  Only  in  a  few  cases, appointments in  accordance with  Rules but in excess of the sanctioned posts  were made. Appointment on casual or ad hoc basis was  a phenomenon  of last  decade for back door entry into service.      When planned  expenditure  is  required  to  be  spent,

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budgetory sanction is mandatory. We have instrinsic evidence in these cases. When some of the employees were sent for one month training,  posts were  created and  budgetory sanction was obtained.  The cases  at hand  are unique and the device adopted by  Mallick is in flagrant violation of all norms of administrative procedure  known to  law. He had given decent burial to  procedure prescribed  by the  Government. Abusing the absolute  power secured  in his hands, he appointed 6000 persons at  his whim  and wagery.  A ceremonial send off was given to  the procedure for appointment to Class III & Class IV posts  and resort  was taken  to their  casual employment without any  letters of  appointment to  fill  the  existing vacancies.      It would, therefore, be difficult to give acceptance to the contention  that appointment  of Class  III and Class IV casual employees  was not  to a post. It is common knowledge that existence  of a  post  is  a  condition  precedent  for appointment whether  it is  created by  statutory  rules  or under  the   executive  instructions.  There  cannot  be  an appointment  or   employment  without   pre-existing   post. Therefore, we  hold that  a post  is a service or employment under  the   State  and  the  post  may  be  created  before appointment or  simultaneously with  it. Though,  therefore, employment is  not a post, the holder must be appointed to a post. A  casual laborer  who discharges transitory or casual duties for  emergent work,  therefore, does  not hold a post though he  may be  under the  administrative control  of the State during  the period  of his  working. We  hold  that  a person appointed,  though on  casual basis  to discharge the duties of  the existing  post  of  vacancies,  needs  to  be appointed to  the post or vacancy according to rules and, if so, he and he alone is a holder of the post. It is true that Kanak Chandra  Dutta’s case was not brought to the notice of the bench  that decided Deepchand Pandey’s case. The learned Judges appear  to have  drawn the  conclusion  in  Deepchand Pandey’s case  from the  experience this Court had gained in deciding several cases of casual or ad hoc employees.      The next  contention is  whether the appointment should be in  accordance with  the procedure  prescribed under  the instructions issued  by the  Government in  1980, 1982, 1983 and 1986.  Admittedly, these are administrative instructions and  no   statutory  rules   are  operating  in  the  field. Therefore, the  administrative instructions  consistent with the rights  guaranteed under  Articles 14  and 16 (1) of the Constitution should  regulate the  procedure for appointment to the  posts. Admittedly,  two circulars issued on December 3, 1980  regulate recruitment  to Class  III  and  Class  IV employees. They  also envisage  drawing  the  names  of  the candidates from  the employment  exchange and also following the rules  of reservation prescribed by the State Government to  the  Scheduled  Castes  and  Scheduled  Tribes  and  the backward classes.  The 25th  March, 1982 circular prescribed constitution  of   a  committee  consisting  of  the  Deputy Director, Tuberculosis,  the Assistant Director, Pilaria and a senior  officer in  the Department  belonging to Scheduled Castes or  Scheduled Tribes  to be its members to select the candidates in  the order  of merit on the basis of the marks secured  in   the  qualifying   examination  etc.  and  that appointments be  made by the appointing authority, viz., the Deputy  Director   from  the  merit  list  prepared  by  the Committee  following   the  roster  points.  Admittedly,  no appointment orders  were issued  for initial appointment for casual Class  III or  class IV employees. In appeals arising out of  S.L.P (C)  NOs.12934-12935 of 1994, according to the appellants’  own  case,  a  committee  was  constituted  and

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recruitment was  made from  amongst the  candidates who  had applied pursuant  to the  publication of  vacancies  on  the notice Board  of the  office at  Patna Central and the rules were followed.  Here itself we would clear one ground, viz., a  contention  was  raised  that  recruitment  was  made  at different places in the Districts and those records were not produced. Pursuant  to our direction, an affidavit was filed stating that  the  appointments  were  made  only  at  Patna Central. Thus  it fortifies  the stand of the State that for appointment to  Class III  and Class IV posts, the procedure prescribed in  the circulars of December 3, 1980 etc. should be followed  and any  appointment made  in violation thereof was clearly  in negation of the rules and such action is per se not  only  arbitrary  but  defeats  the  very  object  of recruitment  offending   Articles  14  and  16  (1)  of  the Constitution. The  contention,  therefore,  of  Shri  Shanti Bhushan that  the procedure prescribed in the said circulars does not  apply  for  initial  recruitment  is  without  any substance and  clearly is  untenable. Any  action  taken  by Mallick in  violation of  the procedure  prescribed  in  the aforementioned  circulars  is  not  only  illegal  but  also subversive of the discipline.      It is  true that Illustration [e] of Section 114 of the Indian Evidence  Act  permits  the  court  to  presume  that official acts  have been regularly performed. But it is only rebuttable presumption. It could be rebutted by adduction of evidence or by attending refutable circumstances. In view of the admitted fact that no letters of appointment were issued to as  many as  6000 odd  employees by Mallick including all the appellants  to fill  up 2250 posts, itself is a positive fact which would conclusively establish that he had not kept up vacancy  position in  mind  nor  followed  the  procedure prescribed in  the aforementioned circulars. the presumption under Section  114, Illustration  [e] does not get attracted to the facts of these cases.      Where a statute imposes a public duty and lays down the manner in  which the  duty shall  be performed, injustice or inconvenience resulting fro rigid adherence to the statutory prescription  to   those  who   have  no  control  over  the procedure, may  be relevant factor to hold such prescription as directory.  Application of  this rule  to recruitment for appointment to  a post under the State would be fraught with grave danger and would be a field day for flagrant violation of the  rules and  would seek legitimacy under the carpet of Section 114, Illustration (e) of the Evidence Act.      The next  question is  whether regularisation  said  to have  been  made  by  Mallick  is  in  accordance  with  the prescribed procedure. We have already noted the contentions. It is  settled law  that there are two modes of recruitment. One is  by direct  recruitment and  the other  by promotion. This Court  in J.K.  Public Service  Commission etc. vs. Dr. Narinder Mohan  &  Ors.  etc.  etc.  [(1993)  4  SCALE  597] considered whether  regularisation by  Court’s direction  to Public Service Commission was a mode of recruitment provided under the  statutory rules  or the  Constitution. This Court held that direct recruitment and promotion are the two modes and regularisation  by placing  the service record of the ad hoc employees before the Public Service Commission and their selection is  a hybrid  procedure not contemplated under the rules. The  contention that  the procedure prescribed in the aforementioned   circulars    would   not   apply   to   the regularisation,  is   also  devoid   of  substance.  We  can understand  that   if  initial  appointments  were  made  in accordance with  the procedure prescribed under the rules or instructions following  the rule  of  reservation  etc.  and

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posts were  filled up with temporary or ad hoc or daily-wage employees and  when their services are regularised, the need to  follow   the  self-same  procedure  would  obviously  be redundant. When  initial appointments are in violation or in negation of  the rules,  in other  words, in the eyes of law there is  no order  for appointment, for regularisation also if the  procedure prescribed  also is not followed, it would be a  field day for the appointing authority to buttress his arbitrary, corrupt  and illegal  acts of appointment without letters or  orders of  appointments and regularisation would be taken  as a shield to cover up illegal or void actions or to perpetrate  further corrupt  actions To confer permanency of appointment  to the  posts by regularisation in violation of the  executive instructions or rules is itself subversive of the procedure. It would, therefore, be mandatory that the procedure prescribed in the circulars should be followed for regularisation of the services of the daily-rated employees.      The question  then is whether the regularisation of the appellants is  in accordance  with the  procedure prescribed under the  aforementioned  circulars.  Though  some  of  the appellants have  placed on  record charts  said to have been signed by  three members of the committee including Mallick, on their  own admission,  the appellants have prepared those charts on  the basis  of alleged official record. It is seen that admittedly  that part of the Secretariat was burnt out. In consequence,  the Government  claimed that  no  authentic record was available. What was the cause for the fire is not material. Another  contention raised was that records in the District Offices  could have been produced but the same have not been  placed on record. The affidavit now filed pursuant to our  directions belies  that  stand.  No  recruitment  at District Head-quarters  appears to have been made to fill up these vacancies.  It would be a matter for investigation for cause of  the fire. No one had raised this contention either before the  Screening Committee or before the High Court. It would, therefore,  be difficult  for us  at this  stage,  to investigate into this factual controversy.      Pursuant to the direction issued by this Court, letters of appointments  by regularisation  have been  placed before us. A casual look at the contents of the cyclostyled letters clearly shows that there is no reference [1] of the dates on which the  candidate weres  first appointed and the place at which they  were working;  length of  service put  in by the candidates,  [2]   whether  the  committee  constituted  had selected the  candidates, and  if so, on what date they were regularised,  [3]   whether  those   appointments  were   in furtherance of  the regularisation  of the  Committee. Their suitability was  not mentioned. We find an admission therein that  the   material  placed   by  the  candidates  was  not scrutinised. On  the other  hand, there  is a  direction  by Mallick to  the  District  Medical  Offices  to  verify  the qualifications etc. and if found acceptable, to appoint them on temporary  basis. When  the regularisation  was  made  in furtherance   of    the   procedure    prescribed   in   the aforementioned circulars, where was the need to appoint them temporarily? Where would be the need to the District Medical Officer to  further scrutinise  the record of qualifications etc. before  appointing them. Where was the need for further appointment by  the District  Medical  Officer  when  Mallik himself was  the appointing authority? They should have been regularised on permanent basis. The contents of the order is antithesis of  regularisation and  was in  negation  of  the procedure prescribed.  From this  intrinsic evidence  and in the absence  of any  authentic record  of the Government, it would be  highly difficult  and hazardous to countenance the

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contentions raised  by the  counsel for  the appellants that appointments of  the appellants,  though  initially  not  in writing,   got    crystallised    into    confirmation    by regularisation; a  right thus  got vested in them and cannot be  taken  away  by  arbitrary  exercise  of  the  power  of termination  on   the  solitary   ground  that   all   those appointments were made by Mallick.      The  contention   that  after  the  regularisation  the appellants must  have weeded out their record and the burden of proof  to show  that regularisation was not in accordance with the  rules heavily  lies on  the State, cannot be given acceptance. It is not the case of any of the appellants that after the  regularisation of their services, they had weeded out their  previous records. On the other hand, some of them placed  it   before  the   Committee  and  this  Court.  The presumption that  regularisation was  in accordance with the procedure and is valid cannot be drawn for the reasons given supra.      Admittedly, except  putting up  the  vacancies  on  the notice  Board  of  the  Tuberculosis  Centre  at  Patna,  no advertisement inviting applications from the open market was made nor were the names called from the employment exchange. In Piara  Singh’s case  [supra], this  Court reiterated that regularisation  should   also  be  in  accordance  with  the procedure  prescribed  and  after  calling  the  names  from employment exchange and that the selection should be made by duly constituting  committee or  by an open competition. The ad  hoc  employees  should  give  place  to  the  candidates recruited and  appointed from  the open  market. One  ad hoc employee cannot  be replaced  by another  ad  hoc  employee. Regularisation of  the casual labour was also directed to be done in  accordance with  the procedure  prescribed  in  the circulars issued  by the  Government. In  other words,  this Court had  not given countenance to any regularisation other than  the   one  done   in  accordance  with  the  procedure prescribed  in   the  appropriate   circulars  or  executive instructions.  The   procedure  adopted  by  Mallick  either appointing or  directing to  appoint persons who had applied for appointment  pursuant to  the notification  of vacancies put up  on the  notice Board was stage-managed by him and is in flagrant  breach  of  Articles  14  and  16  [1]  of  the Constitution.      The next  question is  whether the procedure adopted by the Committee,  viz., publication  in the  newspapers on two different  dates   informing  all  candidates  appointed  by Mallick  to  appear  before  it,  is  in  violation  of  the principles of  natural justice. A few admitted facts, at the cost of repetition, require to be reiterated.      More than  6000 persons  [7000 as  per the respondents’ stand] were  appointed to  hold  2250  posts.  The  Scrutiny Committee  recorded   three  crucial  facts.  Initially,  no letters of  appointments  were  made  on  daily-wage  basis; secondly, adjustment  by transfer  did not  mention previous place of  posting but directed the District Medical Officers to post the candidates after verification of qualifications; and thirdly, fabricated orders of appointment were produced. The record in the custody of the Government was found burnt. When the Committee sought to serve the notices on the Daily- rated employees at Patna Centre, the Deputy Director, Health Services was  mandhandled and  Law and  order situation  had developed. Resultantly,  wide publicity  was  given  in  the press. the sittings of the Committee on different dates were staggered to  10 days  and large number of employees to whom salaries were  not paid  had approached  the High  Court. In other words,  the constitution  of  the  Committee  and  the

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enquiry made  by it  into the  legality and  validity of the appointments made  by Mallick  were obviously  facts  widely known to  everyone. It is claimed that apart from the Centre at Patna,  the other  Centres are situated at the respective District Headquarters. It is, therefore, difficult to accept the appellants’  contention that  some of  them had not seen the  newspapers   and  had  thus  not  appeared  before  the Committee. Admittedly,  only 987 persons had appeared before it. In  other words,  even many among the appellants did not appear  before   the  Committee.   The  appellants   had  an opportunity to place all their records before the High Court when they  had challenged their orders of termination issued by the  Government in letters dated April 30, 1993 which the High Court  was not  prepared to accept them to be authentic and acted upon.      These facts  give rise  to  the  question  whether  the termination  orders  are  violative  of  the  principles  of natural justice  and if  so, what  purpose would  it serve?. With the  aid of  principles of  natural justice, the courts preserve  rule  of  law  keeping  arbitrary  action  by  the executive or  the legislature  within the  confines of  law. Courts have to examine in each case the balance of fairness, whether the  violation of  the  principle  of  audi  alteram partem visits  with irremediable  civil consequences and its incursion on  administration, if  action is  invalidated. No set rule  or standard  of universal application can possibly be laid  for  application  to  all  sets  of  cases.  Courts exercise their  power of judicial review with circumspection to weigh  in balance  the  fairness  of  action.  Therefore, though the  principles of natural justice are omnipervasive, in  given   circumstances  their  non-application  may  also advance cause of justice to prevent misuse or abuse of power or of  the judicial  process. It  is settled  law that post- decisional opportunity  is  valid  to  cure  the  illegality complained of. Though been role of precedents have copiously been cited by the counsel on either side, we are relieved of referring them  in  extensor  on  the  ultimate  test:  what purpose the doctrine of audi alteram partem would ultimately serve to  advance the cause of justice. One decision of this Court is  of necessity  to  be  referred.  In  Bihar  School Examination Board  vs. Subhas Chandra Sinha & Ors. [(1970) 3 SCR 963  at 967]  this Court  held that  when  the  impugned direction did  not concern  a single individual but at least large majority  of them  were involved  in  adopting  unfair means  in  writing  the  examinations,  the  question  arose whether cancellation  of the  examinations without giving an opportunity was violation of principles of natural justice.      It was  held that  "if it  was not the case of charging any one  individual with  unfair means  but to  condemn  the examination as ineffective for the purpose it was held, must the Board  give an  opportunity to  all  the  candidates  to represent their  cases. We  think not.  It was not necessary for the  Board to  give an  opportunity to the candidates if the examinations  as a  whole were  being cancelled."  It is seen that  the committee scrutinised the appointment letters made by  Mallick to  Class III  and Class  IV posts  in  the tendency on the part of the employees.      Notices  terminating   the  services   of   daily-rated employees were  served  on  all  of  them.  Those  who  felt aggrieved had  approached the  High Court  and placed before the Court  their cards  and sought relief on that basis. The High Court did not accept them nor acted upon. What purpose, thereafter, would  it service  to extend  the principles  of natural justice is the question. In S.L. Kapoor vs. Jagmohan &  Ors.   [AIR  1981  SC  136  at  147]  without  giving  an

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opportunity,  the  Municipal  Committee  was  superseded  on diverse grounds for violation of the law. While holding that the law  was violated  as individual  notices had  not  been given to  the members,  this Court  in  para  16  held  that requirements of  natural justice are met only if opportunity to represent  is  given  in  view  of  proposed  action.  In paragraph 17  it was  held  that  "whether  the  failure  to observe natural justice does at all matter if the observance of natural  justice would  have made  no difference when the admitted or  indisputable facts  speak for themselves. Where on the admitted or indisputable facts only one conclusion is possible and  under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice,  not because it approves the non-observance of natural  justice but  because Courts  do not issue futile writes". At  page 147  it was reiterated that "principles of natural justice  know of  no exclusionary  rule dependent on whether it would have made any difference if natural justice had been  observed". This Court in several cases applied the rule appropriate to the facts of each case.      It  is   seen  that  for  2250  posts  more  than  6000 appointments were  made. In  order words,  for each  post at least three persons had been appointed. There are no letters of appointment  and we  find that  the so-called  letters of regularisation are obviously illegal. The Government records were destroyed  in fire.  The materials in the possession of the respective  candidates were  placed before the Committee and the  High Court  but the same were not found acceptable. Under these  circumstances, what  purpose the  direction  to issue notice  would service  those who did not appear before the Committee.  On a  deeper consideration  of  the  factual matrix and  after giving  our most  anxious consideration to the respective  contentions, we  are of  the considered view that principles of natural justice were not violated. We are inclined to  uphold the  view taken  bu  the  Committee  and accepted by  the Government as correct. All the appointments were made  in flagrant  breach  of  the  procedure  and  the executive instructions  and amounted  to latent abuse of the centralised  power  had  by  Mallick  -  and  subversive  of discipline. It  is, therefore,  futile  to  issue  write  as prayed for.      It is  next contended  that security  of service  to an employee is  a Constitutional  right, as  declared  by  this Court, in  socialistic polity  and  that  regularisation  of services of  daily-rated employees  who have put in at least two years;  continuous service, is the law laid down by this Court under  Article 141  of  the  Constitution.  Only  1369 appellants as  against 2250  posts  are  before  the  Court. Therefore, directions  may be issued to treat the appellants as regularised Government employees. It was stated that they have put  in more  than 7 to 8 years of service. Shri Shanti Bhushan very fervently has pleaded for justice tempered with mercy to  regularize their  services.  We  have  given  very anxious consideration  to  the  contention  of  Shri  Shanti Bhushan. True,  in given  circumstances when  there  existed permanent posts  or even temporary posts for longs years, an inference could  be drawn as to the existence of the need to continue such posts. But whether Court would be justified in directing the  Government to  regularise the services of the daily-rated or  ad hoc  employees. In  this  behalf,  it  is apposite to  recall the  pertinent observations made by this Court in Delhi Development Horticulture Employees’ Union vs. Delhi Administration,  Delhi &  Ors. [(1992)  4 SCC  99]  at pages 111-12 in paragraph 23 to the following effect:      "... The courts can take judicial notice

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    of the  fact  that  such  employment  is      sought and  given directly  for  various      illegal considerations  including money.      The  employment   is  given   first  for      temporary periods  with technical breaks      to circumvent the relevant rules, and is      continued for  240 or  more days  with a      view   to    give   the    benefit    of      regularisation  knowing   the   judicial      trend that  those who have completed 240      or  more   days  are   directed  to   be      automatically regularised.  A good  deal      of   illegal   employment   market   has      developed resulting  in a  new source or      corruption and  frustration of those who      are waiting  at the Employment Exchanges      for years.  Not all  those who gain such      back door entry in the employment are in      need  of  the  particular  jobs.  Though      already employed  elsewhere,  they  join      the  jobs   for   better   and   secured      prospects. That is why most of the cases      which  come   to  the   courts  are   of      employment  in  government  departments,      public   undertakings    or    agencies.      Ultimately, it  is the  people who  bear      the heavy  burden of the surplus labour.      The other  equally injurious  effect  of      indiscriminate regularisation  has  been      that many  of the  agencies have stopped      undertaking casual  or  temporary  works      though they are urgent and essential for      fear that  if those  who are employed on      such works  are required to be continued      for 240  or more  days they  have to  be      absorbed as  regular employees  although      the works are time-bound and there is no      need   of   the   workmen   beyond   the      completion of  the works undertaken. The      public interests are thus jeopardised on      both counts."      Mallick  who   had  centralised   power  in  his  hands blatantly abused  the power  and appointed  more than  three persons to  each post  and the  reasons are not far to seek. Direction to regularise the services of those who approached the Court would generate impetus for others who gain illegal and backdoor  entry into  the service with the connivance of appointing authority  and to  remain in  such employment for considerable period  to seek  judicial process  to  c  their illegitimate entry  into the  Government service. They would in  turn   perpetrate  the   same  corrupt   practice   more vigorously,   jeopardising   public   service   and   public interests. Therefore,  courts would be circumspect and chary to direct  regularisation of the service of casual employees in given circumstances. Each case requires to be examined in the backdrop  of its  own facts.  Mere their approaching the court and  continuing the litigation would not be considered to be  a factor  to c  the illegal  actions. It is true that this Court  in Dharwad  Distt. P.W.D.  Literate  Daily  Wage Employees Association  & Ors.  vs. State of Karnataka & Ors. [(1990) 2  SCC 396]  while holding that security of ser vice by regularising  casual employee  within a reasonable period is an  acceptable horn  to achieve  Constitutional  goal  in socialistic polity,  gave directions  to the State to absorb all the  daily-rated employees  in different  Departments of

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the Government  who worked  for several  years. There  is no finding that  their initial  appointments were  tainted with illegality or  abuse of  the power or not according to rules and yet  the directions  were given.  In H.C. Puttaswamy vs. Chief Justice  of Karnataka  High Court,  Bangalore  &  Ors. [(1990) Supp.  2 SCR  552], this  Court directed  the excess staff to  be regularised.  But that was also not a case that there  was   no  letters   of  initial   appointments.   The appointments were not tainted with flagrant violation of the rules. Equally  in Sardara Singh & Ors. vs State of Punjab & Ors. [(1991)  4 SCC  555], this  Court did  not  approve  of putting up  on the  notice Board in the office of the Deputy Collector but  yet it  was held  that the unsuccessful party could not  challenge the  procedure. The  respondent did not suo motto  take up the action for cancelling massive illegal appointments. Equally in Probodh Verma & Ors. etc. vs. State of Uttar  Pradesh &  Ors. etc.  [(1985) 1  SCR 216] the U.P. Legislature recognised  good service  rendered by  untrained teachers during  the period of strike; law was made treating them regular  employees without  the process  of  selection. Though the  High Court  declared it  to be ultea vires under Articles 14  and 16  (1) of  the  Constitution,  this  Court upheld the  class legislation  as valid.  But in view of the finding on  facts of  this case,  it is  difficult to temper justice with  mercy to  direct the  Government to regularise the services  of the  appellants on  humanitarian ground. We are, therefore, constrained to reject the prayer.      In Appeals arising out of SLP Nos.12934-35, 14050-67 of 1994 and  21949 of  1995, the  counsel have placed before us the charts  of the  initial appointments  and the subsequent regularisation stated  to be made by following the procedure prescribed in Circulars dated December 3, 1980 etc. and also following  the  rule  of  reservation  and  appointments  to various categories  were said  to  have  been  made.  Though initially, we  were impressed  with the  argument, on deeper consideration we  find it  difficult to  give acceptance  to their contention.  It is  seen  that  the  documents  placed before us  except letters  of  appointments,  are  only  the charts prepared  by them.  Some of  the monthly  acquittance registers showing  payment of the salary have been placed on record. This Court has come across in some cases, attendance registers placed  on record  in support  of proof  of  their working on  casual basis  in Gopal Gunj District Collector’s office, Bihar. When this Court summoned the originals of the attendance registers,  to its  utmost surprise,  this  Court found the  attendance register placed before the Court to be fabricated.  In  the  absence  of  official  record,  it  is difficult to rely on the material prepared by the appellants and placed  before this Court. Under these circumstances, it is also  difficult to  countenance the contention that their appointments were  made in  accordance with  the  prescribed procedure. In appeals arising out of SLP Nos. 15281-15435 of 1995, for  about 63 persons, the High Court had directed the Deputy Director  to verify whether appointments were validly made  and   on  recording  positive  finding,  directed  the respondents to  pay the  salary. The  learned counsel,  Shri Tripathi had  placed before us a copy of the report given by the Deputy  Director with the finding that they were legally appointed. Their appointments were also cancelled since they had not appeared before the committee. Though prima facie we are satisfied  that  the  contention  of  Shri  Tripathi  is plausible, it  is not possible to accept the same since they failed to  avail of  the opportunity  to appear  before  the Committee which  could have  got verified  and examined  the matter  on   merits.  Some   of  them  appeared  before  the

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Committee. Now  the affidavit  filed on  behalf of the State shows that  there was  no record of any such enquiry. We are constrained to  hold that it is difficult to give the relief of regularisation of their services.      But that is not the end of the journey. The question is what would  be  the  appropriate  direction  that  could  be issued, in  these given  facts and  circumstances. Since  we have  held   that  all   the   appointments   or   so-called regularisations have been made by Mallick in flagrant breach of the  instructions which pursuaded us not to accede to the fervent  appeals   made  by  Shri  Shanti  Bhushan  and  his colleagues to  direct the  respondents to  regularise  their services to  the extent  of the  available posts  within the limit, we decline to accede to the same. We direct as under: [i]       the respondent-State  will publish a notice in all           the newspapers  inviting applications  for  direct           recruitment as  well as  to call  names  from  the           concerned employment exchanges; [ii]      if  no   statutory  body   composed  of  high-rank           officials for  recruitment to  Class III and Class           IV employees is in vogue, the State is directed to           constitute  a   committee  consisting   of   three           members,  viz.,   (a)  a   member  of  the  Public           Servicers, i.e., the Additional or Joint Secretary           of  the   Health  Department;  and  (c)  a  senior           officer, i.e., the Director or Additional Director           of Health Services, to select the candidates; [iii]     the  respondent-Government   will  constitute  the           Committee within  six weeks  from the  date of the           receipt of this order; [iv]      it would  be open  to all  the appellants  or  all           those appointed by Mallick to apply for selection.           The Committee  would, in their case, as first step           verify and  satisfy itself  of the  credentials of           such candidates  whether they  were  appointed  by           Mallick and  had worked  at least  for three years           continuously. The in the appropriate circulars and           follow rule  of reservation  as is  in  vogue  and           prepare the merit list and should submit it to the           Government; [xi]      the  committee   will  complete   the  process  of           selection within  six months  from the date of its           sitting for selection. [x]       within four months from the date of receipt of the           merit list,  the appropriate  appointing authority           or the  Government,  as  the  case  may  be,  will           appoint the candidates as per roster and the merit           list after  due verification of the credentials as           per its procedure; and [xi]      in the  event  of  selection  and  appointment  of           erstwhile daily-rated  employee or  employees, the           entire proved period during which they have worked           as daily-waged  employees  will  be  computed  for           purpose of  pensionary and other benefits but they           would not be entitled to claim any inter se higher           seniority in  the selection  made by the committee           or  for  any  promotion  on  the  basis  of  their           previous service.      The appeals  are accordingly  disposed of  in the above terms. In the circumstances, however, there will be no order as to costs.