Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICITION

CIVIL APPEAL NOS. 4256-4257    2010 (Arising out of S.L.P. (C) Nos.21558-21559 OF 2003)

Md. Ashif & Ors. …Appellants

Versus

State of Bihar & Ors. …Respondents

J U D G M E N T

T.S. THAKUR, J.

1. Leave granted.

2. These appeals by special  leave arise out of an order  

passed  by  a  Division  Bench  of  the  High  Court  of  Patna  

whereby Letters Patent Appeal Nos.33 and 540 of 2002 have  

been allowed, the order passed by the learned Single Judge

set  aside  and  Writ  Petitions  No.11701 and  9024 of  2001  

dismissed.   

3. The  appellants  in  these  appeals  were  in  June  1985  

appointed  as  Voluntary  Health  Workers  in  State  run  

dispensaries within the district of Darbhanga in the State of  

Bihar.  In  lieu  of  their  services  they were  paid  a  monthly  

honorarium  of  Rs.50/-  only.  Less  than  five  months  after  

their  initial  appointment  they  were  absorbed  as  Primary  

Health Workers by the Chief Medical Officer which carried a  

pay  scale  of  Rs.535-765.  It  is  not  in  dispute  that  the  

appellants continued to work for nearly 15 years as Primary  

Health  Workers,  till  their  services  were  terminated  by  an  

order dated 20th February, 2001 on the ground that their  

promotion/absorption as Primary Health Workers was illegal  

and contrary to the rules.  The termination, it appears, came  

pursuant to an enquiry regarding procedure followed in the  

making of the appointments to class III posts.  The enquiry  

revealed  that  the  appointments  were  in  breach  of  

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circular/instructions dated 3rd December, 1980 issued by the  

Chief  Secretary  of  the  State  of  Bihar  pointing  out  that  

appointment to Class-3 posts had been made in violation of  

procedure laid down by the State Government in terms of  

two  circulars  dated  10th July,  1980  and  26th September,  

1980. The Government, therefore, directed all the Heads of  

the Departments, Divisional Commissioners and the District  

Magistrates to review the system and to send their reports  

to  ensure that  action for  filling up of  the vacant  posts  is  

taken in accordance with the prescribed procedure. It was  

further directed that appointments made in violation of the  

prescribed procedure would not only call for action against  

those  who  make  such  appointments  but  render  the  

appointments liable to be cancelled.

4. Aggrieved  by  the  termination  of  their  services  as  

Primary Health Workers and reversion to Voluntary Health  

Workers  the  appellants  filed  Writ  Petitions  No.11701  and  

9024 of 2001 in the High Court of Patna, inter alia, asserting  

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that the appointments of the petitioners (appellants herein)  

had been made after a proper advertisement and that the  

termination of their services 15 years after the commission  

of the alleged irregularity in making the appointments was  

unfair  and  legally  impermissible.  By  an  order  dated  9th  

November, 2001 a Single bench of the High Court of Patna  

held the termination of the services of the appellants to be  

illegal  inasmuch  as  the  same  was  based  on  an  alleged  

irregularity committed 15 years earlier.  Reliance in support  

was placed upon the decisions of this Court in Roshni Devi  

and Ors. Vs.  State of Haryana and Ors. (1998) 8 SCC  

59 and  Union  of  India  &  Ors.  Vs.  Kishorilal  Bablani  

(AIR 1999 SC 517).   

5. The  order  passed  by  the  learned  Single  Judge  was,  

assailed  before  a  Division  bench  in  Letters  Patent  Appeal  

Nos.33 and 540 of  2000 filed  by the State of  Bihar.  The  

Division Bench opined that since the initial appointment of  

the  appellants  herein  was  illegal  the  very  fact  that  the  

appellants had worked for a long period did not cure that  

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defect  so  as  to  justify  their  reinstatement  in  service.   In  

support of that view the Division Bench placed reliance upon  

the decisions of this Court in  Ashwani Kumar & Ors.  Vs.  

State of Bihar & Ors.  (AIR 1997 SC 1628),  State of  

Madhya Pradesh & Anr.  Vs.  Dharam Bir (1998) 6 SCC  

165  and Subedar  Singh  &  Ors.  Vs.  District  Judge,  

Mirzapur & Anr. (AIR 2001 SC 201). The present appeals  

call in question the correctness of the said order as already  

noticed above.      

6. We  have  heard  learned  counsel  for  the  parties  at  

considerable length. The legal position regarding the right of  

an employee to seek regularisation of  his  services  stands  

settled  by  a  long  line  of  the  decisions  of  this  Court.  In  

Ashwani Kumar’s case (supra) this Court declared that the  

question  of  regularisation  of  the  services  of  an  employee  

may  arise  in  two  contingencies.  It  may  arise  firstly  in  

situations  where  against  an  available  clear  vacancy  an  

appointment is made on ad hoc or daily-wage basis by an  

authority  competent  to  do  so  and  such  appointment  is  

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continued from time to time without any artificial break in  

service.  Any  such appointment  may be  regularized  giving  

him security of tenure. The all important condition precedent  

for such regularization is that  the initial entry of such an  

employee must be made against a sanctioned vacancy and  

by following the rules and regulations governing such entry.  

7. The second situation in which regularization could be  

granted was where the initial entry of the employee against  

an available vacancy was found suffering from some flaws in  

the procedure in making the appointment though the person  

appointing was competent to make such initial recruitment  

and  had  otherwise  followed  the  procedure  prescribed  for  

such recruitment. A need may then arise for regularization  

of the initial appointment by the competent authority with a  

view to curing the irregularity if any in the same and with a  

view to granting security of tenure to the incumbent.  It is  

necessary  in  such  situations  that  the  initial  entry  of  the  

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employee is not totally illegal or in breach of the established  

rules and regulations governing such recruitment.

8. The law regarding regularization of employees was on a  

comprehensive  review  authoritatively  declared  by  a  

Constitution  Bench  of  this  Court  in  Secretary,  State  of  

Karnataka & Ors.  Vs. Uma Devi (3) & Ors. (2006) 4  

SCC 1.  This Court in that case drew a distinction between  

an  irregularity  and  an  illegality  in  the  making  of  an  

appointment  and  declared  that  where  the due  process  of  

appointment  has  been  deviated  from,  the  Court  can  

regularize the same.  In  cases where the process itself is  

completely violative of the constitutional scheme underlying  

public  employment  and  no  procedure  has  been  followed  

while  granting  such  appointments  the  Court  cannot  allow  

such an illegality  to continue irrespective of  the length of  

time for which it has continued. Relying upon the decision of  

this Court in  Ashwani Kumar’s  case (supra) this Court in  

Uma Devi’s case (supra) observed:

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“Thus, it is clear that adherence to the rule  of  equality in public  employment is  a basic  feature of our Constitution and since the rule  of law is the core of our Constitution, a court  would certainly be disabled from passing an  order upholding a violation of Article 14 or in  ordering  the  overlooking  of  the  need  to  comply  with  the requirements  of  Article  14  read  with  Article  16  of  the  Constitution.  Therefore,  consistent  with  the  scheme  for  public  employment,  this  Court  while  laying  down the law,  has  necessarily  to  hold  that  unless  the  appointment  is  in  terms  of  the  relevant rules and after a proper competition  among qualified persons, the same would not  confer any right on the appointee. If it is a  contractual  appointment,  the  appointment  comes to an end at the end of the contract, if  it  were  an  engagement  or  appointment  on  daily wages or casual basis, the same would  come  to  an  end  when  it  is  discontinued.  Similarly,  a  temporary  employee  could  not  claim to be made permanent on the expiry of  his  term of  appointment.  It  has also to be  clarified  that  merely  because  a  temporary  employee  or  a  casual  wage  worker  is  continued for a time beyond the term of his  appointment, he would not be entitled to be  absorbed  in  regular  service  or  made  permanent,  merely on the strength of such  continuance, if the original appointment was  not  made  by  following  a  due  process  of  selection as envisaged by the relevant rules.  It is not open to the court to prevent regular  recruitment  at  the  instance  of  temporary  employees whose period of employment has  come to an end or of ad hoc employees who  by the very nature of their appointment, do  not acquire any right. The High Courts acting  under Article 226 of the Constitution, should  not ordinarily issue directions for absorption,  regularisation,  or  permanent  continuance  unless  the  recruitment  itself  was  made  regularly  and in  terms of  the constitutional  scheme.  Merely  because  an  employee  had  continued  under  cover  of  an  order  of  the  court, which we have described as “litigious  employment”  in  the  earlier  part  of  the  judgment,  he  would  not  be  entitled  to  any  right to be absorbed or made permanent in  the service. In fact, in such cases, the High  Court may not be justified in issuing interim  

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directions,  since,  after  all,  if  ultimately  the  employee approaching it is found entitled to  relief, it may be possible for it to mould the  relief  in  such  a  manner  that  ultimately  no  prejudice will be caused to him, whereas an  interim direction to continue his employment  would  hold  up  the  regular  procedure  for  selection or impose on the State the burden  of  paying  an  employee  who  is  really  not  required.  The  courts  must  be  careful  in  ensuring  that  they  do  not  interfere  unduly  with the economic arrangement of its affairs  by the State or its instrumentalities or lend  themselves the instruments to facilitate the  bypassing of the constitutional and statutory  mandates.”

9. The above decision has been followed by this Court in  

Mohd. Abdul Kadir & Anr.  Vs. Directorate General of  

Police,  Assam &  Ors.  (2009)  6  SCC  611,  where  this  

Court held that employees who were recruited in connection  

with a scheme could not claim continuance or regularization  

in service even when they may have worked on ad hoc basis  

for as long as two decades.  The decision of this Court in  

State of Karnataka and Ors.  Vs.  G.V. Chandrashekar  

(2009) 4 SCC 342,  once more reiterated the legal position  

and declared that the observations made by a three-Judge  

Bench  of  this  Court  in  U.P.  State  Electricity  Board  Vs.  

Pooran Chandra Pandey  and Ors. (2007) 11 SCC 92,  

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were only in the nature of obiter dicta.  In Pooran Chandra  

Pandey’s case (supra) a two-Judge Bench of this Court had  

tried to distinguish the ratio of the decision of this Court in  

Uma Devi’s case (supra) and held that the said decision  

had  to  be  read  in  conformity  with  Article  14  of  the  

Constitution  and  that  the  same  could  not  be  applied  

mechanically. The decision in  G.V. Chandrashekar’s case  

(supra)  did  not  find  that  reasoning  to  be  correct  as  is  

evident  from the  following  passage appearing  in  the  said  

decision:

“90. We are distressed to note that despite  several  pronouncements  on  the  subject,  there is substantial increase in the number of  cases  involving  violation  of  the  basics  of  judicial discipline. The learned Single Judges  and  Benches  of  the  High  Courts  refuse  to  follow  and  accept  the  verdict  and  law  laid  down by coordinate and even larger Benches  by citing minor difference in the facts as the  ground  for  doing  so.  Therefore,  it  has  become necessary to reiterate that disrespect  to  the  constitutional  ethos  and  breach  of  discipline have grave impact on the credibility  of judicial institution and encourages chance  litigation.  It  must  be  remembered  that  predictability  and  certainty  is  an  important  hallmark of judicial  jurisprudence developed  in  this  country  in  the last  six  decades  and  increase  in  the  frequency  of  conflicting  judgments  of  the  superior  judiciary  will  do  incalculable harm to the system inasmuch as  the courts at the grass roots will not be able  to decide as to which of the judgments lay  

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down the correct law and which one should  be followed.

91. We may add that in our constitutional set  up every citizen is under a duty to abide by  the  Constitution  and  respect  its  ideals  and  institutions. Those who have been entrusted  with  the  task  of  administering  the  system  and  operating  various  constituents  of  the  State and who take oath to act in accordance  with the Constitution and uphold the same,  have to  set  an  example  by exhibiting  total  commitment to the constitutional ideals. This  principle  is  required  to  be  observed  with  greater  rigour  by  the  members  of  judicial  fraternity who have been bestowed with the  power  to  adjudicate  upon  important  constitutional  and  legal  issues  and  protect  and  preserve  rights  of  the  individuals  and  society as a whole. Discipline is sine qua non  for effective and efficient functioning of the  judicial  system.  If  the  courts  command  others  to  act  in  accordance  with  the  provisions of the Constitution and the rule of  law,  it  is  not  possible  to  countenance  violation  of  the  constitutional  principle  by  those who are required to lay down the law.

92.  In  the  light  of  what  has  been  stated  above, we deem it proper to clarify that the  comments  and  observations  made  by  the  two-Judge  Bench  in  U.P.  SEB v.  Pooran  Chandra Pandey (2007) 11 SCC 92 should be  read as obiter and the same should neither  be  treated  as  binding  by  the  High  Courts,  tribunals  and  other  judicial  foras  nor  they  should  be  relied  upon  or  made  basis  for  bypassing  the  principles  laid  down  by  the  Constitution Bench.”

10. Reference  at  this  stage  may  also  be  made  to  the  

decisions of this Court in  Pinaki Chatterjee Vs.  Union of  

India & Ors. (2009) 5 SCC 193 and General Manager,  

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Uttaranchal Jal Sansthan Vs. Laxmi Devi & Ors. (2009)  

7 SCC 205 where this Court has followed Uma Devi’s case  

(supra) and declared that regularization cannot be granted if  

the same would have the effect of violating Articles 14 and  

16 of the Constitution.  

11. Applying  the  test  laid  down  by  this  Court  in  Uma  

Devi’s case (supra) and the cases referred to above, to the  

case at hand, there is no gainsaying that the appointments  

of  the  appellants  as  Primary  Health  Workers  were  totally  

illegal and violative of Articles 14 and 16 of the Constitution  

which  guarantee  equality  of  opportunity  to  all  those  who  

were otherwise eligible for such appointments.   The Chief  

Medical  Officer  who had made the  appointments  was  not  

vested with the power to do so nor were the claims of other  

candidates  eligible  for  appointments  against  the  posts  to  

which  the  appellants  were  appointed,  considered.  

Surprisingly,  the  appointments  had  come  by  way  of  

absorption of the appellants who were working as Voluntary  

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Health Workers on a monthly honorarium of Rs.50/- only.  

The High Court has, in our opinion, correctly held that there  

was no cadre of Voluntary Health Workers who were working  

on an honorarium in State run dispensaries. The very nature  

of  the  appointment  given  to  the  appellants  as  Voluntary  

Health Workers was honorary in nature which entitled them  

to the payment of not more than Rs.50/- per month.  It is  

difficult  to  appreciate  how the Chief  Medical  Officer  could  

have  regularized/absorbed  such  Voluntary  Health  Workers  

doing honorary service against the post of Primary Health  

Workers which carried a regular pay-scale and which could  

be filled only in accordance with the procedure prescribed for  

that purpose. The appointment of the appellants against the  

said posts was thus manifestly illegal and wholly undeserved  

to say the least. Inasmuch as these appointments came to  

be cancelled pursuant to the said directions no matter nearly  

a decade and a half later the termination could not be said  

to be illegal so as to warrant interference of a writ court for  

reinstatement of  those illegally  appointed. The High Court  

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was,  in  that  view  of  the  matter,  justified  in  declining  

interference  with  the  order  of  cancellation  and  dismissing  

the writ petitions.                               

12. We see no reason to interfere with the order of Division  

Bench of the High Court. These appeals accordingly fail and  

are hereby dismissed.  No costs.  

……………………………J. (J.M. PANCHAL)

……………………………J. (T.S. THAKUR)

New Delhi May 6, 2010

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