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CASE NO.: Appeal (civil)  5460-5465 of 2007

PETITIONER: Nagendra Chandra Etc. Etc

RESPONDENT: State of Jharkhand & Ors

DATE OF JUDGMENT: 28/11/2007

BENCH: B.N. AGRAWAL & TARUN CHATTERJEE & V.S. SIRPURKAR

JUDGMENT: J U D G M E N T

CIVIL APPEAL NOS 5460-5465 OF 2007 [Arising out of SLP (C) Nos. 18379-18384 of 2005]

B.N. AGRAWAL,J.

1.      Leave granted.  2.      The appellants along with several others were appointed as  constables in the year 1990 pursuant to vacancies notified through  notice displayed on the notice board in the Office of Zonal Inspector  General, Ranchi.   Subsequently, when it transpired that the vacancies  were neither advertised through the employment exchange nor in the  newspapers, the Director General \026 cum \026 Inspector General of Police   directed that all such persons, including the appellants, be dismissed  from service and consequentially they were dismissed.  Some of the  constables filed writ petitions challenging the orders of their dismissal  which were quashed by a learned Single Judge of the High Court on the  ground that the orders were passed without giving opportunity of  hearing against which the State of Jharkhand filed letters patent  appeals in the High Court.  In the meantime, the appellants also  challenged their orders of dismissal by filing  separate writ petitions and  their writ petitions  and the letters patent appeals were heard together  by a Division Bench and by the impugned order High Court allowed the  letters patent appeals, set aside orders of the learned Single Judge and  dismissed the writ petitions filed on behalf of the appellants with this  modification only that orders of dismissal from service should be treated  as orders of termination.  Hence these appeals by special leave.  3.      Learned counsel appearing on behalf of the appellants submitted  that though the vacancies were neither advertised through the  employment exchange nor in any newspaper, as required under Rule  663(d) of the Bihar Police Manual, but as the same were displayed on  the notice board, it cannot be said that there was infraction of the said  Rule; as such the services of the appellants should not have been  terminated, more so when they have continued in service for a period of  fourteen years. On the other hand, learned counsel appearing on behalf  of the State of Jharkhand submitted that as the appointments, being in  infraction of Rule 663(d), were illegal, the competent authority was quite  justified in terminating services of the appellants.  4.      In the case of Secretary, State of Karnataka & Ors., vs.  Umadevi (3) & Ors., (2006) 4 SCC 1,  a Constitution Bench of this  Court laid down that any appointment made in violation of recruitment  rules would be violative of Articles 14 and 16 of the Constitution of India  [hereinafter referred to as ’the Constitution’] rendering the same  nullity,  as such even if the appointee has continued in service for a long period,

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he cannot be further allowed to continue in service but if, however, it  was found that the appointment was not illegal but irregular, in that  eventuality he could be permitted to continue in service and the same  could be regularized in case he had worked for ten years or more on  duly sanctioned post.  5.      Thus, the question that falls for our consideration is as to  whether the appointments of the appellants being in infraction of Rule  663(d) of the Bihar Police Manual were irregular or illegal.  6.      Rule 663 of the Bihar Police Manual runs thus:- "Selection of recruits.- (a) Strong, healthy, young  men between the ages of 19 and 27 years and  who have passed secondary (i.e., Matriculation)  examination shall be selected as recruits, as far  as possible.  The standard of physical tests shall  be same as given in Appendix 38, clause 9 for  Sub-Inspectors.   For scheduled castes and tribes,  the upper age-limit is up to 32 years and  educational qualification can be reduced to  middle pass if matriculates are not available.   The standards of height and chest measurements  are given below.  These are the minima and  Superintendents should endeavour to get men of  higher standard:-

(i)     for general \026 height 163 centimetres and  chest 80 centimetres.   

(ii)    for scheduled caste and tribe \026 height 158  centimetres and chest 78 centimetres.

Note.-In measuring the chest, the measuring tape  must be applied evenly but not tightly, its  upper edge touching the lower border of the  shoulder blades, and its lower edge  passing just above the nipples, the arms  hanging by the sides.  The standard is the  minimum measurement, with the chest  fully deflated.  Just before the  measurement is taken the candidate shall  be made to count up to thirty, without  taking breath and without hurrying.  

(iii)   There is no physical standard for Gurkhas,  who are residents of India and men of the  best physique obtainable and at least  literate shall be enlisted.  

N.B. -  Nepalese subjects cannot be enlisted.  

(b)     Recruits shall be measured by the reserve  inspector in the Superintendent’s presence at the  time of enlistment.  

(c)     The Selection Board is not precluded from  selecting men over 27 years of age or, for special  reasons, men beneath the standard of  measurement, but it shall do so only on good  grounds.  Before enlistment the Deputy Inspector- General can give relaxation in height and chest  by 2.5 cms. only. [See Cl. 9 of Appendix 2, Part 2).

(d)     The recruitment shall be made twice a year  in such a way that recruits are ready to go to  Constables Training School before the start of the  session.  There shall be no necessity for training

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in district headquarters.  The Superintendent  shall publish notice of selection of candidates in  newspapers giving the exact number of vacancies  and also advertise through employment  exchange.  He shall endeavour that selection is  completed and results are laid before the  candidates the same day or on the following day  so that they are not made to stay unnecessarily.   No waiting list of candidates beyond the number  advertised except for few extramen for possible  unfitness in medical test is to be kept."

From a bare perusal of the aforesaid Rule it would be clear that the  requirement of the Rule is to notify the vacancies in newspapers and to  advertise the same through employment exchange, which,  undisputedly, has not been done in the present case as here the  vacancies have been notified through notice displayed on the notice  board.   7.      In the case of Ashwani Kumar & Ors.  vs. State of Bihar & Ors.  (1996) 7 SCC 577, large number of appointments were made by Dr.  Mallick, Deputy Director, Health Department, Government of Bihar, by  notifying the vacancies on the notice board.  When the illegality was  brought to the notice of the Government, the appointments were  cancelled which necessitated filing of writ petitions before the High  Court which were dismissed and when the matter was brought to this  Court, the cases were placed before a 2-Judge Bench consisting of  K.Ramaswamy and B.L. Hansaria, JJ.  There was difference of opinion  between the two learned Judges.  K.Ramaswamy, J. (as His Lordship  then was), held that the vacancies having been put up on the notice  board, there was flagrant breach of Articles 14 and 16 of the  Constitution.  Learned Judge observed in paragraph 26 at page 594  thus:-

"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\005...The procedure adopted by Mallick in  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."

Hansaria,J., dissented from the aforesaid view expressed by  Ramaswamy,J., and, therefore, the matter was placed before a 3-Judge  Bench - Ashwani Kumar & Ors. vs. State of Bihar & Ors. [(1997) 2  SCC 1] - in which order of the High Court was upheld and directions  were given, inter alia, for making appointments by publishing notice in  all the newspapers having circulation in the State of Bihar inviting  applications for filling up the vacancies.   8.      In the case of National Fertilizers Ltd. & Ors. vs. Somvir Singh,  (2006) 5 SCC 493, this Court was dealing with the case of recruitment  under Rule 1.5 of Recruitment and Promotion Rules which required  "direct recruitment by advertisement".  The appointments were made  without advertisement by a public sector undertaking which is State  within the meaning of Article 12 of the Constitution.   Those appointed  filed a writ petition before the High Court for regularization of their  services which was allowed and their services were regularized.   Challenging the said order, when the matter was brought to this Court,  the orders of regularization were quashed on the ground that the initial  appointments were nullities in view of the fact that the same were in

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infraction of the Rules and violative of Articles 14 and 16 of the  Constitution. The Court observed in paragraph 13 at page 497 thus:-

"\005.Admittedly, no advertisement was issued in a  newspaper nor was the employment exchange  notified as regards existence of vacancies.  It is  now trite law that "State" within the meaning of  Article 12 of the Constitution is bound to comply  with the constitutional requirements as  adumbrated in Articles 14 and 16 thereof.  When  the Recruitment Rules are made, the employer  would be bound to comply with the same.  Any  appointment in violation of such Rules would  render them as nullities\005."  

9.     In view of the foregoing discussion, we have no option but to hold  that if an appointment is made in infraction of the recruitment rules,  the same would be violative of Articles 14 and 16 of the Constitution  and being nullity would be liable to be cancelled. In the present case, as  the vacancies were not advertised  in the newspapers, the appointments  made were not only in infraction of Rule 663(d) of the Bihar Police  Manual but also violative of Articles 14 and 16 of the Constitution,  which rendered the appointments of the appellants as illegal; as such  the competent authority was quite justified in terminating their services  and the High Court, by the impugned order, was quite justified in  upholding the same.   10.     In the result, the appeals fail and the same are accordingly  dismissed, but in view of the fact that the appellants have continued in  service for a period of fourteen years, we may, however, observe that  their cases may be considered for future appointment and age bar, if  any, may be relaxed in relation to them.  There shall be no order as to  costs.