16 December 1996
Supreme Court


Case number: C.A. No.-010758-010759 / 1995
Diary number: 11252 / 1994






DATE OF JUDGMENT:       16/12/1996




JUDGMENT:                             WITH      [C.A. Nos.  10760-11058/95; 11062-66/95; C.A. No. 16746 of 1996 (arising out of S.L.P.(C) No.6174/92; C.A. No. 16747 of 1996  (arising out  of S.L.P.(C)  No.14275/94;  C.A.  No. 16748 of  1996 (arising  out of  S.L.P.(C)  No.7410/95;  and C.A., No.  16749 of 1996 (arising out of S.L.P.(C) No. 24553 (C.C. 4638/95]                       J U D G M E N T      S.B. Majmudar. J.      Leave granted  in S.L.P.(C)  Nos.6174 of 1992, 14275 of 1994. 7410 of 1995 and S.L.P.(C) No. 24553 (CC 4638/95).      This group  of appeals,  on grant  of special  leave to appeal against  the common  judgment of  Patna High Court in CWJC No.5163  of 1993 and batch decided on 6th May 1994, has been placed  before this  larger  Bench  by  the  orders  of Hon’ble the  Chief  Justice  on  account  of  difference  of opinion  between  two  learned  judges  of  this  Court,  K. Ramaswamy, J.  and Hansaria,  J., constituting  the Division Bench which  earlier heard this group of matters. Before the main  points   for  difference   are  highlighted   and  the contentions of  respective contesting  parties are noted, it would be  necessary to note at the outset the backdrop facts leading to these proceedings.      Backdrop Facts      One  Dr.   A.A.  Mallick,   Deputy   Director,   Health Department of  the Government  of Bihar,  was in  charge  of Tuberculosis for a number of years while he was working as a member of  the medical service of the State of Bihar. 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 Dr. 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 Dr. Mallick in implementation of the  programme. He  was made  the Chairman  of  Selection Committee  constituted   by  the  Government  consisting  of himself. Assistant  Director of Pilaria and a senior officer representing Scheduled  Castes/Scheduled Tribes  to  recruit



2250 class  III and  Class IV  employees on posts 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  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  Dr. 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 by  turns. Another  device adopted  in the  macabre 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, off illegal appointments made by Dr. Mallick, the Government initially posed the appointments to be  legal and  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 an 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  by  filing  petitions  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  an  Enquiry Committee  was   constituted  to   find  out   whether   the appointments made  by Dr.  Mallick were  valid  and  whether salaries could be paid to such employees.      In the  meanwhile, the  Government  also  directed  the Vigilance Department  to enquire  into the matter and on 7th May 1991, the Vigilance Department in its report pointed out that Dr.  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 min-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  Dr. 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 Dr. Mallick did not make any order  of appointment  on daily  wage basis by following due procedure.  It found  it difficult  to accept  even  the orders of  confirmation. In  that view,  the Committee found that the  initial appointments  made by  Dr. Mallick were in violation of  the instructions  issued  by  the  Government. Therefore, they  were found  to be illegal appointments. The Committee also found that Dr. Mallick circumvented the rules by making  adjustment  by  transfer  without  verifying  the qualifications, eligibility  or disclosing  previous  places



where at  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  the  credentials  and  then  to appoint them  temporarily. The Committee also noted that the third  category   was  of  persons  who  were  appointed  by producing fabricated orders of appointment. Consequently, it directed to cancel all the appointments made by Dr. Mallick. On receipt  of the  report and  on  its  consideration,  the Government found  them to be invalid and illegal and all the appointments  were   canceled.  When   their  legality   was questioned in  the writ  petitions filed  under Article 226, the High  Court upheld  the Government  action.  Thus  these appeals by special leave.      When this  group of  appeals was  finally heard  by the Division Bench  of this Court consisting of K. Ramaswamy, J. and Hansaria, J., as noted earlier, on hearing the arguments of learned  counsel appearing  for the  contesting  parties, there arose  a difference of opinion between the two learned judges. K. Ramaswamy, J., came to the following conclusions: 1.   Even though  it was  open to  the Government  to create      posts  or   to  fill  up  the  posts  independently  of      existence of  any law or statutory rules made under the      proviso to  Article 309  of the  Constitution  to  that      effect, the said exercise had to be consistent with the      right guaranteed  under Articles  14 and  16(1) of  the      Constitution of India. 2.   When planned  expenditure  is  required  to  be  spent,      budgetary sanction  is mandatory.  In the present cases      when some  of the  employees were  sent for one month’s      training posts  were created and budgetary sanction was      obtained. The  cases at hand were unique and the device      adopted by Dr. Mallick was 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. 3.   Procedure for  appointment to  Class III  and Class  IV      posts was  given a  go-by. Instead  casual appointments      were made without any letters of appointment to fill up      even non-existing vacancies. 4.   Existence of  post or  vacancy was  a sine  qua non for      making appointments to such existing posts or vacancies      and as there were no 6000 posts or vacancies available,      the recruitment  made by Dr. Mallick to these posts was      patently illegal and without authority of law. 5.   When initial  appointments  were  in  violation  or  in      negation of the rules or in other words when there were      no  orders   for  appointment  there  would  remain  no      question of  regularisation of  such initially  illegal      appointments. To  confer permanency  of appointment  to      the  posts   by  regularisation  in  violation  of  the      executive instructions or rules is itself subversive of      the procedure. 6.   Without following  due procedure  prescribed under  the      circulars, regularisation  of services  of  daily  wage      employees could not be effected. 7.   Principles of  natural justice  were not required to be      followed in the present cases. Even otherwise there was      due compliance with these principles. 8.   As all the appointments were made in flagrant breach of      the  procedure   and  the  executive  instructions  and      amounted to blatant abuse of the centralised power held      by Dr.  Mallick and  subversive of  discipline, it  was



    futile to issue writs as prayed for. 9.   However  Ramaswamy,   J.  was   inclined  to  issue  11      directions in  para  36  of  his  judgment  for  future      recruitment of  class  III  and  IV  employees  in  the      Tuberculosis Eradication  Programme, providing  certain      safeguards   for   considering   the   feasibility   of      recruiting the present appellants on these posts.      In view  of the  aforesaid findings  and conclusions K. Ramaswamy, J.  was inclined  to dispose  of the  appeals  by confirming, subject  to the  aforesaid directions, the order of the High Court dismissing the writ petitions.      On the  other hand  Hansaria, J., reached the following conclusions and findings : 1.   For the  purpose of  recruiting Class  III and Class IV      employees  in  the  20-Point  Programme  the  procedure      prescribed by Office Memorandum dated 3rd December 1980      was not required to be followed. 2.   It could  not be  said that the procedure visualised by      Office Memorandum  dated  3rd  December  1980  was  not      followed at all while regularising the appellants. 3.   Non-advertisement of  posts in newspapers did not cause      any infirmity to the regularisation. 4.   Non-information to  the Employment  Exchange had caused      no dent to the appointments. 5.   The question  of illegality  in appointment  of general      candidates on  the ground  of non-reservation  did  not      arise as the material showed that there was reservation      of SC/ST candidates. 6.   Material  on   record  showed   that  in   some   cases      regularisation was  in pursuance of the recommendations      of a properly constituted Selection Committee. 7.   Merit list/panel was prepared in some cases pursuant to      O.M. of  3rd December  1980. But  it could  not be said      that it  was done  in all  cases. However, there was no      justification  in   finding  infirmity   in   all   the      appointments because of lack of material on record. 8.   Principles of  natural justice were not fully compelled      with before terminating the services of the appellants.      However, that  had no  nullifying effect  so far as the      present proceedings are concerned as they were heard by      this Court  and consequently on that ground termination      orders could not be set aside. 9.   Even though  Dr. Mallick  was not  justified in  giving      direct appointment  to about  6000 persons  when  there      were only  2500 sanctioned  posts, all  the persons  so      employed hand  not abetted,  aided  or  instigated  Dr.      Mallick in  doing so,  and, therefore,  even  though  a      wrong doer  or a  sinner has  to be  punished and  also      those who  aid, abet  or instigate  them but  not those      regarding whom only a doubt existed. 10.  About 2500  persons could  have been  appointed by  Dr.      Mallick and  as there  was material  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 the  appellants,      whose number  is 1363,  may be  among  those  who  were      regularly appointed.      Consequently  in   view  of   the  aforesaid   findings Hansaria, J.  was inclined  to hold  that justice  had to be tempered with  mercy in  the light  of  Article  21  of  the Constitution of  India and  as it was doubtful whether these 1363 appellants  could be  said  to  have  been  irregularly appointed, termination  orders qua  them were required to be set aside.  It was made clear by Hansaria, J., that the said order would  not in  any way be taken advantage of except by



the 1363 appellants before the Court. As noted earlier it is this difference  of opinion  between the  two learned judges constituting the  Division Bench, that has triggered off the present proceedings before this larger Bench.      Rival Contentions      Learned counsel for the appellants vehemently submitted that there  was ample  evidence on the record of these cases to show  that Dr.  Mallick was  the appointing authority and was duly  empowered  to  appoint  Class  III  and  Class  IV employees  on   the  programme   regarding  eradication   of Tuberculosis which  was taken  up  as  a  part  of  20-Point Programme in  the Planned Expenditure by the State of Bihar. It was  further contended  that the  Government Order of 3rd December 1980  did not  apply  to  such  appointments.  That looking to the urgency of the Programme the appointments had to  be   made  on   a  war-footing  and  that  is  how  6000 appointments were made by Dr. Mallick in due exercise of his authority so  that the  Tuberculosis  Eradication  Programme could be  put on  an effective  and strong  footing. It  was further submitted  that these  were not  posts born  on  any regular cadre in State Service and consequently the detailed method of  recruitment for  filling up  vacancies for such a Programme was  not required  to be  followed.  It  was  next contended that  Dr. Mallick  had given due importance to the policy  of   reservation  as  applied  by  the  State  while effecting  these   appointments.  That  in  any  case  these appointments on  ad-hoc basis  were ultimately duly approved by the  State when the Committee constituted for the purpose had found  them to  be valid  and accordingly  the employees were regularised.  That thereafter  it was  not open  to the State of  Bihar to  nullify these appointments by one stroke of pen. Even that apart all the appointments effected by Dr. Mallick  which   were  about   6000,  could  not  have  been invalidated in  a wholesale manner which was contrary to the basic principles  of the natural justice. That the so-called hearing  given   by  the   Committee  even   prior  to   its constitution could  not be  said to  be a hearing at all and hence  termination   orders  were  null  and  void.  It  was ultimately submitted  that for  no  fault  of  theirs  these employees who  had continued  for  more  than  10  years  in service  in  many  cases  and  who  were  even  subsequently promoted could  not have been removed wholesale and hence on the principle  of fairness,  equity and  even invoking mercy jurisdiction of the Court they should have been continued in service. That,  if at all, they were victims at the hands of Dr. Mallick  but could not be said to be abetters and should have been  dealt with  in  a  humanitarian  manner.  It  was contended that  on the same lines on which this Court in the case of  H.C. Puttaswamy & Ors. v. The Hon’ble Chief Justice of Karnataka  High Court. Bangalore & Ors. JT 1990 (4) S 474 permitted the irregularly appointed employees to continue in service without  a break, the present appellants also should be directed  to be so continued in service after giving them reinstatement with  all consequential  benefits. Dr. Dhavan, learned senior  counsel  appearing  for  the  appellants  in appeals which  were earlier  delinked from  this  group  but which were  subsequently placed  along with  the  group  for disposal, namely,  civil appeal  arising  out  of  S.L.P.(C) No.14275 of  1994 and  C.A. Nos. 10811-28 of 1995, submitted that 8  employees in  civil appeal  arising out of S.L.P.(C) No. 14275 of 1994 were not appointed by Dr. Mallick but were appointed by  Dr.  Mithilesh  Kumar  and,  therefore,  their appointments stood  on a separate footing and could not have been nullified by adopting the general yardstick for voiding all the  appointments made  by Dr.  Mallick. So  far as  the



Civil Appeals  Nos. 10811-28  of  1995  were  concerned  Dr. Dhavan submitted  that appointments made by Dr. Mallick were in  two  phases,  the  first  phase  was  reflected  by  the Government Order  dated 25th  March 1983 wherein Dr. Mallick had appointed  number of employees under the Scheme. But the second phase  started pursuant to the Government Order dated 31st January  1987 whereunder a programme was instituted for training Tuberculosis Attendants and Tuberculosis Assistants and once  they were  given training  such candidates  became entitled to  be appointed  on regular basis in the Programme and as  they had  been so trained there was nothing wrong in continuing them  in service.  Dr. Dhavan also submitted that the Tuberculosis Eradication Scheme under 20-point Programme was entirely  a separate  Scheme undertaken  by the State of Bihar in  collaboration with  the Central Government wherein the expenses for the infrastructure were to be shared by the State Government as well as Central Government and there was no question  of any  posts  being  created  in  the  regular service of  the State. Under these circumstances the regiour of the  procedure of  recruitment to  State service  as laid down by  the Notification  to State  service as laid down by the Notification  of 3rd  December 1980 could not be applied to fill  up the  vacancies on  this Scheme.  Consequently no fault could  be found with the manner of recruitment adopted by Dr. Mallick especially when a Committee, duly constituted under the  Scheme by the State Government, had cleared these appointments and  directed regularisation  of these  ad  hoc employees as  initially appointed by Dr. Mallick, Dr. Dhavan further submitted  that these  posts where  sanctioned  from time to  time by  State Government.  That there  was nothing wrong with  the regularisation of these employees and all of them could  not have  been terminated  by one  stroke of pen contrary to  all the basic established principles of natural justice and  fairplay. Ultimately  it was  contended that in any case by tempering justice with mercy these employees who have now  become age-barred  should not  be  thrown  out  of service after  number of  years when they had been recruited in service  for no  fault  of  theirs.  It  was,  therefore, submitted by  Dr. Dhavan  towing the  line of  other learned advocates for  the appellants  that the  appeals  should  be allowed  and  all  the  prayers  put  forward  in  the  writ petitions filed  in the High Court should be granted. In the written submissions  filed in  Civil appeal Nos. 10831-10985 of  1995  it  was  submitted  that  the  20-point  programme announced by  Government of  India underscored  the need for eradicating the  dreaded  disease  Tuberculosis  (T.B.).  In Bihar State  alone as  per Government  information  in  1976 about half the population (current population 10 crores) was striken with T.B. and the annual death toll was feared to be in excess  of 1  lakh with  3 Lakh  new cases reported every year. It  was in this background that the S.L.P. petitioners who numbered  581 were all appointed (initially ad-hoc/daily wagers) in  Class III  and Class IV posts in connection with the T.B.  Eradication programme  in the  State of Bihar from the year  1980 onwards and were regularised on various dates thereafter (p. 146-166 S.L.P. paper book). By the additional affidavit dated  4.9.1994 particulars  of  the  petitioners, their dates  of ad-hoc/daily-rated  appointments  and  their dates of  regularisation, and  (in  many  cases)  subsequent promotion have  been set  out (pages  146-169  S.L.P.  paper book). It  was submitted  that the  initial appointments and regularisation of  these employees were valid and proper. It was next  submitted that  by a  letter dated 25th March 1988 the Joint  Secretary (Health)  confirmed and  appointed  Dr. A.A.  Mallick   as  ex-officio  Chairman  of  the  Selection



Committee and  by a directive dated 24th July 1984 the Joint Secretary had  directed the  said Dr.  Mallick to regularise the appointments  made by him and to the same effect was the subsequent letter  dated 17th  October 1984 to the Chairman, T.B. Hospital  directing regularisation of the daily wagers. In short similar contentions were sought to be raised in the written submissions  as were  advanced by  learned advocates appearing for other appellants.      Shri  Singh,   learned  counsel   appearing   for   the respondent-State on  the other  hand submitted  that all the initial appointments  on ad hoc or daily-rated basis made by Dr. Mallick  were patently  unauthorised and illegal for the simple reason  that though there were in all 2500 sanctioned posts, Dr. Mallick for the reasons best known to him thought it fit  to appoint 6000 Class III and Class IV employees. He threw the  established procedure  for  recruitment  of  such employees to  the winds  and  in  a  most  arbitrary  manner adopting a  policy  of  ’pick  and  choose  appointed  these persons. These  appointments were not backed up by financial budgets. They  were totally  unauthorised and could not have been countenanced at all. As there was nothing to show as to who could  be fitted  in against  the sanctioned  posts  the State was  justified on  the recommendation  of the  Enquiry Committee to set aside all these appointments which were ex- officio contrary  to the  established norms  of recruitment. That as  these appointments were illegal and void from their inception there was no question of regularising them and the so-called regularisation was wholly arbitrary, null and void and of  no legal effect. That ample opportunity was given to these employees  to put forward their contentions before the committee. Public  notices were  given inviting them to have their say  be submitting  all  necessary  datas  before  the Committee. Not  only that  but even  987 persons  did appear before the  committee. Therefore,  there was  no question of violation of  principles of  natural justice.  It  was  next contended by  Shri  Singh  that  there  is  no  question  of tempering justice  with mercy  s all  these incumbents  were illegally  appointed   by  Dr.   Mallick  and  that  it  was impossible to  decide in the absence of relevant material or data on  record as  to who were senior enough to be adjusted against the sanctioned 2500 posts out of the 6000 employees. Hence the  only solution  to the  problem was to nullify all the appointments  and to  start on a clean slate de novo. In reference to  the contentions  of learned  counsel  for  the appellants placing  reliance on  decision of  this Court  in H.C. Puttaswamy  (supra) it  was submitted that in that case the initial  appointments by  the Chief Justice of Karnataka High Court  were not  illegal or  unauthorised as  the Chief Justice had  enough financial  power to create any number of posts on  the High Court establishment. That what was voided was the  method by which the employees recruited on the High Court establishment  were subsequently  transferred  to  the establishments  of   subordinate  courts   and  under  these peculiar circumstances  the  appointees  were  permitted  to continue in  service without break. That in the present case though Dr.  Mallick was  authorised to  recruit staff on the Tuberculosis Eradication  Scheme, as  there were  only  2500 sanctioned posts, the wholesale appointments of 6000 persons made  by  him  were  clearly  illegal  and  an  exercise  in futility. It was next contended that even though these posts may not  be posts  born on  the regular  cadres in the State service they  were certainly  to  be  vacancies  which  were required to be supported by sufficient financial budgets and unless  there   were  vacancies   covered  by   the  planned expenditure budgeted  for the  purpose, no such appointments



could be effected. Under these circumstances such appointees who were  illegal appointees  from the  very beginning could not have  been regularised. So far as the submissions of Dr. Dhavan were  concerned it  was submitted  that there were no two phases  in which  appointments were made by Dr. Mallick. So far  as he  was concerned  there was  only one  phase  of recruiting persons  at his  whims and  fancies on  vacancies which did  not really  exist and whatever training was given to these employees also remained an exercise in futility. So far as  8 employees  covered by  Civil Appeal arising out of S.L.P. (C) No. 14275 of 1994 were concerned it was submitted that  Dr.  Mithilesh  Kumar  was  also  directed  to  effect appointments under  instructions of  Dr. Mallick  and  hence their appointments  also stood  on the same footing on which direct appointees  of  Dr.  Mallick  stood  and,  therefore, suffered  from  the  same  vitiating  consequences.  It  was accordingly submitted  by Shri  Singh that  the appeals were required to be dismissed.      In the  light of  the aforesaid  rival contentions  the following points arise for our determination:      Points for determination 1.   Whether the  appointments of  Class III  and  Class  IV      employees on  the Tuberculosis  Eradication Scheme as a      part of 20-Point programme were legal and valid. 2.   Whether the confirmation of these employees was legally      justified. 3.   Whether principles  of natural  justice  were  violated      while terminating  services of all these 6000 employees      appointed by Dr. Mallick. 4.   What relief, if any, can be granted to the appellants.      We shall deal with these points seriatim.      Point No. 1      So far  as the  initial appointments  of 6000 Class III and Class  IV employees  by Dr. Mallick are concerned it has to  be   kept  in   view  that  Dr.  Mallick  was  Director, Tuberculosis Centre  at Patna.  Eradication of  tuberculosis was taken  up as  a part  of 20-Point  Programme  under  the Planned Expenditure.  The activities  of the  Programme were extended to  various districts.  It cannot  be disputed that Dr. Mallick  was the  appointing authority for these classes of employees who had to work on the Scheme. He was duly made Chairman of the Selection Committee constituted by the Bihar State Government.  The Committee  consisted of  Dr. Mallick, Assistant  Director   of  Pilaria   and  a   senior  officer representing   Scheduled   Castes/Scheduled   Tribes.   This Committee was  entrusted with  the task  of recruiting  2250 Class III  and Class  IV employees. These posts were created to implement  the Scheme  in addition  to 800-900  staff  in Patna Centre  in all categories. It goes without saying that the budgeted  expenditure for  recruitment of 2250 employees on these  sanctioned posts  was a  planned  expenditure.  As these were  the only  sanctioned posts  under the  Scheme it passes one’s  comprehension as  to  how  Dr.  Mallick  could persuade himself  to recruit  6000 employees  on these  2250 sanctioned posts.  Learned counsel  for  the  appellants  in written submissions  tried to  urge  that  there  were  more sanctioned posts  while the learned counsel for the State of Bihar  tried  to  assert  that  Dr.  Mallick  had  appointed approximately 7000  persons. But  as both the learned judges constituting the  Division Bench,  namely, K.  Ramaswamy, J. and Hansaria,  J. proceeded  on  the  accepted  position  on record  that   Dr.  Mallick  unauthorisedly  appointed  6000 employees on  the sanctioned  2250 posts  we will proceed on that basis.  It becomes, therefore, clear that at least 3750 employees were  drafted in the Scheme by Dr. Mallick without



there being  any vacancies  to  receive  them.  Under  these circumstances their initial entry must be held to be totally unauthorised, incompetent  and void.  It is  axiomatic  that when these  recruitments were not supported by any budgetary grants there  will be no occasion to make available finances to meet  their salary  expenses. Even  apart from  that, Dr. Mallick threw  all the  discretion to  the winds,  acted  as monarch of  what he surveyed and in a most arbitrary fashion adopting the principle of ’pick and choose’, recruited these 6000 employees  completely violating  the established  norms and  procedures  for  recruiting  Class  III  and  Class  IV employees as  laid down by the State government from time to time. We  agree with  the contention  of Shri Singh, learned counsel for the respondent-State that all these recruitments made by Dr. Mallick were arbitrary, capricious and were null and void  as he  did violence  to the  established norms and procedures for  recruiting such  employees, Dr.  Mallick was not giving  appointments to  these employees  on his private establishment.  He  was  recruiting  them  in  a  government Programme which  was supported  by Planned Expenditure. Such recruitment to  Public services could not have been effected in such  a cavalier  fashion in  which it  was done  by  Dr. Mallick. We  are not  in a position to persuade ourselves to agree  with  the  contention  of  learned  counsel  for  the appellants that  the Government  Order of  3rd December 1980 would not  apply to  these recruitments as this was a unique and distinct Scheme under 20-Point Programme. Even if it was a scheme  under 20-Point  Programme it was to be carried out as per  planned expenditure. It is obvious that when planned expenditure is  required to  be incurred, budgetary sanction is a  sine qua  non. unfortunately  Dr. Mallick treated this Scheme as  his private  property. The  device adopted by him was in  flagrant violation  of all  norms of  administrative procedure known to law. In this connection we may profitably refer to  Government Order  dated 3rd December 1980 which is found at  page 344  of the  Paper Book  in Civil Appeal Nos. 10758-59 of  1995. This  Government  Order  deals  with  the procedure of  appointment to  Class-3  Posts  in  Government offices. There  is a  similar Government  Order of even date for recruitment of Class-4 servants. That is annexed at page 352 in  this very Paper Book. it is issued by the Department of Personnel  and Administrative  reforms, Bihar  State.  As this recruitment  was done  in a centralised manner at Patna for  different   districts  under  Tuberculosis  Eradication Scheme to  be carried  out in  all the districts in a phased manner, we  may refer  only to  that part of this Government Order which  referred to  the procedure  to be  adopted  for recruitment in Secretarial Services at Patna. it has been in terms laid  down that  in the  Secretariat and  its attached offices, a Selection committee shall be constituted. It will be chaired  by the  head of  the concerned establishment and one of  the members  of this  committee will  be any  senior officer as nominated by the Head of the Establishment. Other members of the committee will be officers belonging to SC/ST working in  the same  department. As per this G.O. so far as recruitment to Class III posts is concerned a merit list has to be  prepared on  the  basis  of  marks  obtained  by  the candidates at school or college examinations and appointment to  the   vacant  posts   will  be  made  according  to  the instructions enclosed  with the  concerned  Resolution.  The vacancies will  have  to  be  communicated  to  the  nearest employment  Exchange   of  respective   areas  wherein   the concerned  offices   exist.  so   far  s   G.O.   concerning recruitment to Class IV servants is concerned, the Committee appointed for  the purpose  has to publish the advertisement



through  the   Employment  Exchange  as  per  the  direction contained in  appointment Department Circular No. 8160 dated 21st   June    1966.   Government   instructions   regarding reservation for  SC/ST also have to be adhered to. It is not in dispute that none of these instructions and the procedure laid down  for recruiting  Class III  and class IV employees were followed  by Dr.  Mallick while  recruiting adhoc/daily wage employees  at the  initial stage  in  the  Tuberculosis Eradication Scheme supervised and monitored by him. However, learned counsel for the appellants vehemently submitted that these two Government orders would not apply and what applied for these  recruitments was  the government Resolution dated 25th March  1983. It  is found at page 404 of the Paper Book in these  civil appeals.  The said  Resolution of  the Bihar Government  in   the  Health  Department  issued  under  the signature of Joint Secretary to the Government shows that in super  session   of  all  the  previous  orders,  the  State Government had decided to constitute Selection Committee for regular appointment against the posts of class III and class IV under  Malaria, filaria  and T.B. Programme. The officers noted against  their names  would function  as Chairman  and members. A  mere look  at  this  Resolution  shows  that  it indicates the  appointing authorities  who have  to  recruit staff on  the concerned  programme  mentioned  therein.  Dr. Mallick would necessarily, therefore, be the Chairman of the Tuberculosis Control  Programme Recruitment  Committee.  But the very Resolution indicates that recruitment had to be for regular appointments  to be made by the Selection committees to Class  III and  Class IV posts under Malaria, filaria and T.B. Programme.  Therefore, recruitment  was to be done in a regular manner  against available  posts. It  never  gave  a blanket power  to Dr. Mallick to create new posts which were not sanctioned  and to  make recruitment thereon. Nor did it give any  authority to  throw the  recruitment procedure for recruiting such  class III  and Class  IV employees  to  the winds and  to make recruitment in an arbitrary manner at his whims and  fancies. Nowhere  this Resolution  indicates that the earlier  Government Orders  laying  down  the  procedure regarding recruitment  to Class  III and Class IV posts were to be  given a  go-by. Consequently  the Resolution  of 25th March 1983  has to  be read along with the government Orders dated  3rd   December  180   and  not   de  hors  them.  The supersession of  the previous  orders as contemplated by the Resolution of  25 March  1983 was only to the limited extent that  the   Selection  committee   mentioned  in   the  said Resolution will be the committee for appointing such persons on  the   concerned  programmes   and  to  that  extent  the recruiting authority  as mentioned in the earlier Government Orders would  stand superseded  but it did nothing more than that. The  procedure for  recruitment, however, would remain the same  even for the newly constituted Selection committee as per  the resolution of 25th March 183. consequently it is not possible to agree with the contention of learned counsel for the  appellants that  this Resolution of 25th March 1983 displaced and  gave a  send-off to the recruitment procedure laid down  by the Government Orders of 3rd December 1980. It is also equally not possible to agree with the contention of learned counsel  for the  appellants that  s the recruitment was to  be made on Tuberculosis Eradication Scheme under 20- Point Programme  and the appointments were not to be made to posts on  any regular  order  of  Bihar  State  Service  the recruitment procedure laid down by earlier government Orders of 3rd  December 1980  would not stand attracted. It is easy to visualise  that though the vacancies or posts as the case may be,  may not  be in  the regular Bihar State Service but



would be in the concerned programmes or schemes, nonetheless there  would  have  to  be  recruitment  to  the  sanctioned vacancies necessarily  backed up  by  the  financial  budget support, to  be made  available by the State as per 20-Point Programme under its liability to contribute towards the same along with  Central Government.  It is axiomatic that unless there is  vacancy there  is no  question of  filling it  up. There cannot  be an  employee  without  a  vacancy  or  post available on  which he  can work  and can be paid as per the budgetary sanctions.  It appears  that Dr. Mallick suffering from wrong  nations of  power and  authority under  the said Government Resolution  and without  bothering  to  find  out whether  there  were  vacancies  or  not  under  the  Scheme indulged in self-help to recruit as many class III and Class IV employees as suited him and the result was that he loaded a dead  weight of  burden of  these employees  on the  State exchequer  by   resorting  to   a  completely   unauthorised exercise. The  State authorities  were justified in refusing to release  salaries for  paying this  unauthorised army  of staff which  represented a  host of  unwelcome guests.  They were all  persons non  grata and  were not  employees in the real sense of the term. It must, therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication  Scheme were  ex facis  illegal. As they were  contrary to all recognised recruitment procedures and were  highly arbitrary,  they were  not binding  on  the State  of   Bihar.  The   first  point   for  determination, therefore, will have to be answered in the negative.      Point No. 2      So  far  as  the  question  of  confirmation  of  these employees whose  entry  itself  was  illegal  and  void,  is concerned. It  is to  be noted that question of confirmation of regularisation  of  an  irregularly  appointed  candidate would arise  if the  concerned candidate  is appointed in an irregular manner  or on  adhoc basis  against  an  available vacancy which  is already  sanctioned. But  if  the  initial entry  itself   is  unauthorised  and  is  not  against  any sanctioned vacancy,  question of  regularising the incumbent on such  a non-existing  vacancy  would  never  service  for consideration and  even if  such purposed  regularisation or confirmation is  given it  would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances there was no occasion to regularise them or to give them  valid confirmation.  The  so-called  exercise  of confirming these  employees, therefore,  remained a nullity. Learned counsel  for the appellants invited our attention to the  chart  showing  the  details  of  appointments  of  the concerned appellants  as found at Annexure XXII at pages 243 to 255 of the Paper Book and also as a specimen a subsequent order of  confirmation as  found at  page 256 in the case of Ashwani Kumar.  It  was  submitted  that  such  confirmation orders were  also given  to number  of   employees who  were initially appointed  as daily  wagers/T.B. Assistants by Dr. Mallick.   Our attention  was also  invited to the letter of Joint  Secretary   Shri  Anant   Shukla   written   to   the Superintendent, T.B.  Hospital,  Koelwar,  Bhojpur  on  17th October 1984 which is found as Annexure-X at page 147 of the Paper Book to show that steps were taken for ratification of the orders of appointment of the daily wage employees as per the direction  of  Deputy  Director,  T.B./Health  Services, Bihar. As we have seen earlier when the initial appointments by Dr.  Mallick so far as these daily wagers were concerned, were illegal  there was  no question  of  regularising  such employees and  no right  accrued to  them as  they were  not confirmed on  available clear vacancies under the Scheme. It



passes one’s comprehension as to how against 2500 sanctioned vacancies  confirmation   could  have  been  given  to  6000 employees. The  whole exercise  remained in  the realm of an unauthorised adventure.  Nothing could  come out of nothing. Ex nihilo  nihil fit. Zero multiplied by zero remained zero. consequently no  sustenance can  be drawn  by the appellants from these confirmation orders issued to them by Dr. Mallick on the  basis of  the directions  issued  by  the  concerned authorities  at  the  relevant  time.  It  would  amount  to regularisation of back door entries which were vitiated from the very  inception of  learned counsel  for appellants that the vacancies  on the  Scheme had nothing to do with regular posts. Whether  they are  posts or  vacancies they  must  be backed up  by budgetary  provisions so  as  to  be  included within the  permissible infrastructure  of the  Scheme.  Any posting which  is dehors  the budgetary  grant and on a non- existing vacancy  would be outside the sanctioned scheme and would remain  totally unauthorised. No right would accrue to the incumbent of such an imaginary or shadow vacancy.      In  this  connection  it  is  pertinent  to  note  that question of  regularisation in  any  service  including  any Government service  may arise in two contingencies. Firstly, if on  any available  clear vacancies  which are  of a  long duration appointments are made on ad hoc basis or daily wage basis by  a competent  authority and are continued from time to time  and if  it is  found that  the concerned incumbents have continued to be employed for a long period of time with or without  any artificial  breaks, and  their services  are otherwise required  by the institution which employs them, a time may  come in  the service  career of such employees who are continued on ad hoc basis for a given substantial length of time  to regularise  them so that the concerned employees can give their best by being assured security of tenure. But this would  require one pre-condition that the initial entry of such  an employees  must be  made  against  an  available sanctioned vacancy  by following  the rules  and regulations governing such  entry. The second type of situation in which the question  of regularisation  may arise would be when the initial entry  of the  employee against an available vacancy is found  to have  suffered from some flow in the procedural exercise though the person appointing is competent to effect such initial  recruitment and  has  otherwise  followed  due procedure for such recruitment. A need may then arise in the light of  the exigency  of  administrative  requirement  for waiving such  irregularity in  the  initial  appointment  by competent authority  and the  irregular initial  appointment may be  regularised and  security  of  tenure  may  be  made available to  the concerned  incumbent. But  even in  such a case the  initial entry  must not  be found  to  be  totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back door entries  for filling  up such  vacancies have got to be strictly avoided.  However,  there  would  never  arise  any occasion for  regularising the  appointment of  an  employee whose initial entry itself is tainted and is in total breach of the  requisite procedure  of recruitment  and  especially when there  is no  vacancy on which such an initial entry of the candidate  could ever  be effected.  Such an entry of an employee would remain tainted from the very beginning and no question of  regularising such an illegal entrant would ever survive for  consideration, however competent the recruiting agency may  be. The  appellants fall in this latter class of cases. They  had no  case for  regularisation  and  whatever purported  regularisation   was  effected  in  their  favour remained an  exercise in  futility. Learned  counsel for the



appellants, therefore,  could not justifiably fall back upon the orders  of regularisation  passed in their favour by Dr. Mallick. Even otherwise for regularising such employees will established procedure  had to  be followed.  In the  present case it  was totally  by-passed. In  this connection  we may profitably refer  to Government  Order dated  31st  December 1986 to  which our  attention was invited by learned counsel for the  appellants. The  said government  Order is found in the additional  documents submitted in C.A. Nos. 10758-59 of 1995 at  Annexure-IV.  Secretary  to  Government  of  Bihar, Health Department,  by communication  dated  31.12.1986  had informed all  regional deputy  directors,  health  Services; Tuberculosis civil  surgeon-cum-Chief Medical  officer;  and other  concerned   authorities  in   connection   with   the compliance and  implementation  of  the  orders  passed  and instructions issued by Deputy director (Tuberculosis) Bihar, Patna under the Tuberculosis control Programme covered under the  20-Point   programme.  It   was  stated   in  the  said Communication that steps will be taken to fill up sanctioned Third and  fourth Grade  posts as soon as possible according to the  prescribed procedure and all possible efforts should be made to achieve the fixed targets in a planned and phased manner. Even  this letter  clearly indicates  that the posts had to  be filled  up by following the prescribed procedure. Despite  all   these  communications   neither  the  initial appointments nor  the confirmations  were done  by following the prescribed  procedure. On  the contrary all efforts were made to  bypass the recruitment procedure known to law which resulted in  clear violation of Articles 14 and 16(1) of the Constitution of  India both  at the initial stage as well as at the  stage of confirmation of these illegal entrants. The so-called regularisations  and confirmations  could  not  be relied on  as shields  to cover  up initial illegal and void actions or  to perpetuate the corrupt methods by which these 6000 initial  entrants were  drafted in  the Scheme  by  Dr. Mallick.  For  all  these  reasons,  therefore,  it  is  not possible to agree with the contention of learned counsel for the appellants  that in  any case the confirmations given to these employees  gave them  sufficient cloak  of  protection against future  termination from  services. On  the contrary all the  cobwebs created  by Dr. Mallick by bringing in this army of  6000 employees  under the  Scheme  had  got  to  be cleared lock,  stock and barrel so that public confidence in government  administration   would  not  get  shattered  and arbitrary actions would not get sanctified.      We  may  also  at  this  stage  to  additional  written submissions filed  on behalf  of the appellants in C.A. Nos. 10831-10985 of  1995. In  these written submissions reliance is placed  on the judgment of one of us, A.M. Ahmade, J. (as His  Lordship   then  was),   in  the   case  of   Jacob  M. Puthuparambil &  Ors. etc.  etc. v. Kerala Water Authority & Ors. etc.  etc. (1991) 1 SCC 28. In the said decision it was held that  when ad  hoc employees who were continued for two years or more (in some cases one year or more) were entitled to be  regularised subject to availability of vacancies. The aforesaid decision  cannot be of any avail to the appellants for the  simple reason  that once we find that there were no vacancies  at   all  on   which  the   appellants  could  be regularised there  was no  occasion  to  undertake  such  an exercise  especially  when  the  initial  entries  of  these appellants in  the service  were found  to  be  illegal  and vitiated.      Before we  leave  discussion  on  point  no.  2  it  is necessary to  mention two  additional aspects placed for our consideration by Dr. Dhavan in support of the appellants. In



Civil Appeal Nos. 10811-28 of 1995 Dr. Dhavan submitted that there were  two phases  in connection  with recruitment  for Tuberculosis Eradication  Programme. One  phase was  as  per Government Order of 25th March 1983 wherein the committee of recruitment headed  by Dr.  Mallick was  entrusted with  the task  of  recruitment.  But  the  second  phase  started  on 31.1.1987 when  Joint  Secretary  to  Government  of  Bihar, Health Department  addressed a  communication to  the Deputy Director, Tuberculosis,  Dr. Mallick. The said communication is found as Annexure V to the Paper Book in civil Appeal no. 10811-28 of  1995. it  mentions that  the signatory  to  the communication was  directed to  say that keeping in view the necessity of one T.B. Assistant and T.B. Attendant  for each of the  627 Primary  Health centers,  a  training  programme should be launched for training the candidates in proportion to the  number of primary Health centres, which will have to compulsorily participate  in the final examination conducted by the  Director,  State  T.B.  Demonstration  and  Training Centre and  shall have to pass such examination so that they may be  posted in  the Primary  Health centres  in order  of merit from  the list of trained candidates after approval of sanction of  a posts by the Government in phases. Dr. Dhavan contended that  pursuant to  the said  direction Dr. Mallick appointed number  of candidates under the Training Programme and these  candidates  were  trained  for  being  ultimately absorbed in primary health centres under the Scheme. We fail to appreciate  how this  communication which  is  styled  as beginning of  the second phase by Dr. Dhavan, can change the situation. Even  though some  training was  given under  the direction  of  the  Government  to  certain  candidates  the recruitment made  by Dr.  Mallick in excess of the available vacancies would  still remain  unauthorised and  illegal and cannot improve  the situation  for the  said trainees in any manner. Even  after training  when recruitment is to be made it must  be made  on available vacancies or sanctioned posts under the  Scheme and that too after following due procedure of  recruitment.   That  was  never  done  by  Dr.  Mallick. Therefore, the  so-called second  phase cannot  improve  the position for  the appellants  in any manner. Dr. Dhavan then submitted that  at least  so far  as 8  appellants in  Civil Appeal arising  out of  S.L.P  (C)  No.  14275  of  1994  ar concerned, they  were not  appointed by Dr. Mallick but were appointed by  Dr. Mithilesh  Kumar. In  para 3 of S.L.P. (C) No. 14275  of 1994  it has  been stated  that one letter was issued by  the then  Deputy Director  (T.B.), Dr. Mallick on 23rd November  1989 by  which  the  Civil  Surgeon-cum-chief Medical Officer, Madhubani was directed to absorb petitioner no. 2  according to  his qualification  against a  Class III post and  accordingly he  was appointed. At page 83 is found the recital  as regards  petitioner nos.  7 and  8,  to  the effect that  with respect  to them  Dr.  Mallick,  the  then Deputy Director  (T.B.) Health  Services issued  one  letter dated 12th  January 1990  recommending for  their absorption against class III posts according to their qualification and that is  how they  were appointed by Dr. Mithilesh Kumar. It was next  submitted with  reference to  paragraph 13  of the same  special  Leave  Petition  that  with  respect  to  the appointments which were made by then Civil Surgeon-cum-Chief Medical Officer,  Madhubani, like the petitioners a separate letter was  issued on  6th March  1993 wherein  the incharge Medical Officers  of Primary health Centres were directed to issue  show   cause  notices   to  such  persons,  who  were appointed/absorbed by  the order  of the then civil Surgeon- cum-Chief Medical  Officer, but such show cause notices were never issued. In our view these averments cannot improve the



case  of   the  appellants.   Even  though  these  concerned petitioners  might  have  been  actually  appointed  by  Dr. Mithilesh Kumar  their appointments  were recommended by Dr. Mallick who,  therefore, remained  the prime  mover in their cases also  as in cases all other appellants. It is the hand of Dr.  Mallick that  brought them  under  the  Tuberculosis Eradication Scheme  and but  for him they would not have got their entry.  Therefore, actual appointments might have been made by  Dr. Mithilesh  Kumar but the real appointing agency remained that  of Dr.  Mallick. Consequently the effort made by Dr.  Dhavan to  separate their  cases from  the cases  of other appellants  who are  tracing their direct linkage with Dr. Mallick remained an abortive one. Similarly whether show cause notices  were issued  to them  or not  also  would  be besides the  point as  we will see while deciding point no.3 that public  notices were  given to appointees to have their say before  the competent authority in connection with their appointments and  basic principles  of natural  justice were followed in  these cases  also. The second point, therefore, is answered in the negative. This takes to the consideration of Point No.3 for determination.      Point No.3      So  far  as  the  principles  of  natural  justice  are concerned it  has to be stated at the outset that principles of natural  justice cannot  be  subjected  to  any  straight jacket formula.  They will  very from  case  to  case,  from circumstance  to   circumstance  and   from   situation   to situation. Here is a case in which 6000 employees were found squatting  in   the  Tuberculosis   Scheme  controlled   and monitored by  Dr. Mallick  for the entire State of Bihar and there  was   no  budgetary   sanction  for  defraying  their expenditure. At  least our  of the  6000 employees  as  seen earlier 3750  were totally  unauthorised and  were squatting against non-existing vacancies. A grave situation had arisen which required immediate action for clearing the stables and for  eradicating   the  evil   effects  of   these  vitiated recruitments so  that the  Tuberculosis  Eradication  Scheme could be put on a sound footing. When such a grave situation had arisen  and when  matters had  gone up to the High Court wherein the  State was  directed to  appoint a  Committee to thoroughly investigate the entire matter, the State of Bihar had to  appoint a committee to scrutinies these appointments and to  filter them  as directed by the High court of Patna. For undertaking the said exercise public notices were issued by the  Director-in-Chief, Health  Services, Bihar, Patna by Communication dated  4th July  1992. The  said communication which s found at page 147 of the Paper Book recites that Dr. Mallick, the  then Deputy Director (T.B.) presently retired, issued orders  of appointment/posting/transfer/absorption on a large  scale against  the Class  III and Class IV posts in the T.B.  Eradication Programme  under  the  Directorate  of Health  Services   without  following   the  procedure   for appointments/without publication  of  advertisement  and  by openly violating  reservation  policy  in  contravention  of Article 16. While distributing such appointment letters, Dr. Mallick in  many cases did not even care to see whether even the posts  were sanctioned or not. Reference was made to the order passed  by High  Court of Patna which had directed the Government  to   require  in  all  such  matters  and  after considering the representations, pass a final order within 6 weeks. It  was in  the  light  of  the  Patna  High  Court’s direction that  the Government called upon all the concerned persons to  submit their representations, show cause replies before the signatory to the communication positively by 25th July 1992  so that appropriate decision might be taken after



examining the  legality of  their appointments. Six types of informations were sought for from the concerned persons. The employees appointed  from 1980  to 1987  were called upon to appear before the Director in Chief, Health Services, Bihar. Patna in his office situated at Vikas Bhawan, Secretariat at 11.00 a.m.  positively with  a copy  of show-cause  reply on different dates  ranging  from  17th  august  1992  to  19th September 1992  and the employees appointed from May 1988 to December 1988  and from  January 1989  to December 1989-1990 were to  appear in  person on 29th September 1992. It is not in dispute that pursuant to the aforesaid communication duly published, out  of 6000  employees who were the creatures of Dr. Mallick,  987 did  appear. The  appellants in  C.A. Nos. 10758-59 of  1995 and  others did  submit details  of  their service bio-data  to the concerned authority as per the said communication. A sample copy of the show cause reply sent to the Director-in-Chief,  Health Services,  in response to the said communication  is at  page 151 of the Paper Book. Query wise replies are found in the said return. It was thereafter that a written order was passed by Director-in-chief on 12th November  1992   appointing  a  committee  of  officers  for scrutinising these  replies and  for coming  to the  correct conclusion  in  the  light  of  the  data  supplied  by  the concerned  employees   who  remained  present  for  personal hearing before  the authority  in response  to  the  earlier communication. The said order dated 12th November 1992 is at page 402  of the  Paper Book.  it clearly recites that after due consideration  of all  the  facts,  the  Government  had decided that  the validity  of all  the appointments made by Dr. Mallick  after 1.1.1980  should be examined. Accordingly all the concerned officials were given opportunity to submit show cause  replies  before  the  director-in-chief,  Health Services Bihar,  Patna by  25.7.92, after getting the notice to show  cause advertised  on 4.7.92  and  also  were  given opportunity for personal hearing after fixing separate dates for officials  appointed year  wise from  1980 till  August- September 1992.  A committee  of the  officers mentioned  in paragraph 4  was appointed  to review the show cause replies mentioned in  paragraph 3 and information received in course of personal  hearings.  The  committee  had  to  review  the merits/demerits of  the appointments  under question  in the light of policy and procedures prescribed by Government from time to  time for  appointment in  Public Service and submit its recommendation  to the  Government. the  learned counsel for the appellants submitted that appointment of this review committees  was   after  the  personal  hearing  before  the Director-in-Chief,  Health   Services,  Bihar,   Patna  and, therefore, this  violated the  basic principles  of  natural justice.  It  is  difficult  to  agree.  all  the  concerned appointees whose  appointments by  Dr. Mallick  were  to  be filtered were  given personal  hearing by  the  Director-in- Chief. The  data which  they had to submit was duly received and  it   was  thereafter  that  the  Review  committee  was entrusted with  the task of going through the data submitted by these  employees along  with their  replies and their say during the  personal hearing.  Therefore,  the  said  review Committed was  only to  scrutinies the data collected during the  personal   hearing  by  the  Director-in-Chief,  Health Services  and  on  that  bases  the  Committee  decided  the question of  legality and  validity of  their  appointments. Thus the  basic principles of natural justice cannot be said to have been violated by the Committee which ultimately took decision on  the basis  of the personal hearing given to the concerned employees  and after  considering what they had to say regarding  their appointments. Whatever was submitted by



the concerned  employees was  taken into  consideration  and than the  committee came  to a  firm decision  to the effect that  all  these  appointments  made  by  Dr.  Mallick  were vitiated from  the inception  and were  required to  be  set aside and  that is  how the impugned termination orders were passed against  the appellants. On the facts of these cases, therefore, it  cannot be  said that  principles  of  natural justice were  violated or  full opportunity was not given to the concerned  employees to  have their  say in  the  matter before their  appointments  were  recalled  and  terminated. Point no.3 is, therefore, is answered in the negative.      Point No.4      Now is the tie for us to take stock of the situation in the light of our answers to the aforesaid three points. As a logical corollary to these answers the appeals are liable to be dismissed  as the  decision of the High Court is found to be well  sustained. The  submission made  by learned counsel for the  appellants to  sustain services of these appellants on humanitarian  grounds cannot  be countenanced.  When 6000 appointees are  found to  have been  illegally loaded on the State exchequer by Dr. Mallick and when there were only 2250 sanctioned posts,  in the  absence of  clear data  as to who were the  senior most  and which  were the  sanctioned posts available at  the relevant  time against which they could be fitted  it   would  be   impossible  to   undertake  even  a jettisoning operation  to off  load the  removable  load  of excess employees  amounting to  3750  by  resorting  to  any judicial surgery.  Once the  source of  their recruitment is found to be tainted all of them have to go by the board. Nor can we  say tat  benefit can  be made available only to 1363 appellants  before  us  as  the  other  employees  similarly circumscribed and  who might  not have  approached the  High Court or  this Court  earlier and  who may be waiting in the wings would also be entitled to claim similar relief against the State  which has  to give equal treatment to all of them otherwise  it   would  be   held  guilty  of  discriminatory treatment which  could not be countenanced under Articles 14 and  16(1)   of  the   Constitution  of  India.  Everything, therefore, must  start on  a clean slate. Reliance placed by learned counsel  for  the  appellants  on  the  doctrine  of tempering justice  with mercy  also  cannot  be  pressed  in service on  the peculiar  facts of these cases as mercy also has to  be based  on justice.  The decision of this Court in the case  of H.C.  Puttaswamy (supra)  also  can  be  of  no assistance to  the appellants  on the  facts of  the present cases as  in that  case the  Chief Justice of the High Court had full  financial powers to create any number of vacancies on the  establishment of  the High  Court as required and to fill them  up. There  was no  ceiling on  his  such  powers. Therefore, the  initial entry of the appointees could not be said to  be unauthorised  or vitiated  or tainted. The fault that was  found was  the manner  in which  after recruitment they were  passed on  to the  establishments of  subordinate courts. That exercise remained vitiated. But as the original entries in  High Court  service were  not unauthorised these candidates/employees were  permitted to be regularised. Such is not  the present case. The initial entry of the employees is  itself   unauthorised  being   not  against   sanctioned vacancies nor  was Dr.  Mallick entrusted  with the power of creating vacancies  or  posts  for  the  schemes  under  the Tuberculosis   Eradication   Programme.   Consequently   the termination of  the services  of all these appellants cannot be found  fault with.  Nor any  relief as claimed by them of reinstatement with  continued service  can be made available to them.



    However there  is one  human aspect which calls for our attention on  the facts  of the  present cases.  These  6000 employees got  employed by  Dr.  Mallick  over  at  least  a decade. Many  of them  served for  number of  years and  got confirmed. They  would  naturally  have  their  families  to support. For  no  fault  of  theirs  they  found  themselves stranded in  life midstream.  Many might have got over aged. As Dr.  Dhavan pointed  out, many  of them  also got trained under the second phase of the Programme, as he would like to style it,  pursuant to  the Government Order dated 31.1.1987 referred to by us earlier. Under these circumstances justice would require that some effort to salvage their situation if possible may  be made  when the  State  undertakes  a  fresh exercise  to   fill  up   the  sanctioned  posts  under  the Tuberculosis Eradication  Programme which  has come to stay. We are informed that tuberculosis is still not eradicated in the State  of Bihar  and the Programme is to last for couple of more  years and  may be  it may  assume a  semi-permanent status. It  was  also  not  disputed  that  there  are  2250 sanctioned posts  or it  may be  that some  more  sanctioned posts may  see the  light of  the day  in near  future. Shri Singh learned  counsel for  the respondent-State informed us that the  State proposes to start on a clean slate and after following  due  procedure  of  recruitment  would  certainly recruit Class  III and  Class IV employees on the sanctioned vacancies and  posts which  will have  to be  filled up  for making the  Tuberculosis Eradication  Scheme  effective  and fully operative.  When that is the need of the day, it would be  appropriate  to  direct  the  State  to  undertake  that exercise at  the earliest and while doing so after following the due procedure of recruitment and the rules governing the same,  given   an  opportunity  to  these  6000  unfortunate creatures of  Dr. Mallick  to compete  for the said posts in the future  recruitment that  may be undertaken by the State and in the process because of the experience which they have gathered  in  their  past  service  under  the  Tuberculosis Programme and  the training  which they  might have received pursuant to the Government Order dated 31.1.1987, due weight age  also   be  given   to  them   while  considering  their eligibility for  being recruited in service as and when such future exercise  is undertaken.  Consequently we deem it fit to issue the following directions to the respondent State of Bihar in this connection : 1.   Respondent-State of  Bihar may  start at the earliest a      fresh exercise  for recruiting  Class III  and Class IV      employees in  the  Tuberculosis  Eradication  Programme      undertaken by the State as a part of 20-Point Programme      on the available 2250 vacancies or even more vacancies,      as the case may be, preferably within three months from      the receipt of a copy of this order. 2.   Towards the  said exercise  the State  will  publish  a      notice in  all the newspapers having circulation in the      State inviting  applications for  direct recruitment to      Class III  and Class  IV posts  for  filling  up  these      vacancies in the said Programme. 3.   Similarly  names  may  also  be  called  for  from  the      concerned Employment Exchange for such recruitment. 4.   If no  statutory body composed of high-ranked 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  Service Commission; (b) a senior      IAS officer, 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.  The  Additional  or  Joint      Secretary of Health Department shall be the Chairman of      the Committee. 5.   The respondent-State  will constitute  such a committee      preferably within  three months  of the receipt of this      order. 6.   It would  be  open  to  all  the  appellants  or  those      appointed by  Dr. Mallick who might not have challenged      their termination  orders before any competent court up      till now, to apply for selection to the concerned Class      III and  Class IV  posts. The  committee would in their      cases as  first step,  verify and satisfy itself of the      credentials  of   such  candidates  whether  they  were      appointed by  Dr. Mallick  and had  worked a  least for      three years  continuously.  The  committee  would  also      satisfy  itself   that  such  candidate  or  candidates      honestly and  meritoriously discharged  their duties as      Class III  and Class  IV appointees,  at least  for the      said period. 7.   The committee  may fix  total number  of  marks  to  be      obtained by  the candidates  for being  treated to have      passed  the  selection  test.  Any  relaxation  in  the      minimum  eligibility   marks  to  be  obtained  by  the      Scheduled Casts,  Scheduled Tribes  and Other  Backward      Classes candidates  as  found  necessary  may  also  be      decided by  the committee.  The committee  if satisfied      about the  credentials and  other  particulars  of  the      appellants  or   those  appointed  by  Dr.  Mallick  as      mentioned in  paragraph (6) above, may allot additional      marks to  them for each of the three years and more for      which they  might have  worked, at  the rate of 2 marks      for each completed year of continuous working, upto the      maximum of  6 marks,  for  each  candidate.  Candidates      appointed  by   Dr.  Mallick  who  are  found  to  have      undertaken  training   pursuant   to   the   Government      direction dated  31.1.1987 may  be awarded 2 additional      marks for  the training so received. Those 2 marks will      be in  addition to  the 6 marks which are to be awarded      on completion  of meritorious and honest service by the      concerned employees as mentioned above. 8.   If the  concerned candidates who were earlier appointed      by Dr.  Mallick  are  found  by  the  committee  to  be      otherwise eligible for being appointed to Class III and      Class  IV   posts  as   per  the   relevant  rules  and      regulations and  if on  the basis of the marks allotted      to  them  as  aforesaid  they  become  eligible  to  be      appointed besides  other competing  candidates, then if      they are  found to have become age barred the condition      of age  for recruitment  of such  candidates should  be      relaxed appropriately  so as to entitle such candidates      to be considered for selection. 9.   The State  Government shall  arrange  sittings  of  the      Selection Committee  preferably within  two months from      the   last   date   prescribed   for   submitting   the      applications and  for  completion  of  the  preliminary      scrutiny of  such  applications.  The  committee  shall      select  all   candidates  on   merits   following   the      prescribed procedure  in the  appropriate circulars and      rules and shall also follow the rules of reservation as      in vogue  and prepare  the merit list and should submit      it to  the Government.  While  doing  so  the  eligible      candidates who  were earlier  appointed by  Dr. Mallick      and who  received the  marks for their past meritorious      service and  training as  aforesaid will  be considered      for selection  qua the other candidates in the light of



    the weight  age of  the marks  as aforesaid and in that      light the  committee will  select all the candidates on      merits and  will prepare  the select list of candidates      found fit to be appointed to the concerned posts. 10.  The committee  will complete  the process  of selection      preferably within  three months  from the  date of  its      sittings for selection. 11.  An appropriate authority or the government, as the case      may be,  will appoint  preferably within  three  months      from the date of the receipt of the merit list from the      committee, the  selected candidates  as per  roster and      the merit  list,  on  available  vacancies,  after  due      identification of  the credentials  of  the  candidates      concerned as per its legally permissible procedure. 12.  In the  event of selection and appointment of erstwhile      daily-rated employee or employees, who were inducted by      Dr. Mallick, the entire proved period during which they      had worked  as daily  wager and/or  confirmed employees      will be  computed for  the purpose  of  pensionary  and      other retrial benefits but they will 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 disposed of in the above terms. In the facts and  circumstances of  the case there will be no order as to costs.