17 September 2004
Supreme Court
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SATCHIDANANDA MISHRA Vs STATE OF ORISSA .

Bench: Y.K. SABHARWAL,D.M. DHARMADHIKARI
Case number: C.A. No.-008039-008039 / 2003
Diary number: 17993 / 2001
Advocates: DEVENDRA SINGH Vs M. A. CHINNASAMY


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CASE NO.: Appeal (civil)  8039 of 2003

PETITIONER: Satchidananda Mishra

RESPONDENT: State of Orissa & Ors.

DATE OF JUDGMENT: 17/09/2004

BENCH: Y.K. Sabharwal & D.M. Dharmadhikari

JUDGMENT: J U D G M E N T

[With CA Nos.8058, 8059, 8061-8062, 8063, 8064, 8065, 8066, of 2003,  Contempt Petition (C) No.419 of 2002, CA Nos.8060 of 2003, 3015-16 of  2004 and SLP (C) Nos.13861-862 of 2004]

Y.K. Sabharwal, J. The present appeal by special leave is directed against the judgment dated  6th August, 2001 passed by the Orissa High Court declining to set aside order of  Orissa Administrative Tribunal whereby Orissa Medical Education Service  (Appointment of Junior Teachers Validation) Act, 1993 (for short, ’the Validating  Act’) has been declared as ultra vires the Constitution of India.  The factual  background which gives rise to the present controversy is narrated as follows.  On 24th September, 1973, the Orissa Medical Health Services (Recruitment  and Promotion to Teaching Posts in the Medical Colleges) Rules, 1973  (hereinafter referred to as the ’1973 Rules’) were framed under proviso to Article  309 of the Constitution.  These Rules provided that appointment to the posts of  Junior Teachers shall be made through a Selection Board by recruitment from  amongst the Assistant Surgeons with at least one year’s experience as such, in  consultation with the Orissa Public Service Commission (hereinafter referred to as  ’OPSC’).  Rule 3(f) defined ’Selection Board’ to mean a Selection Board  appointed by the State Government to select persons for appointment to the Junior  or Senior teaching posts and shall consist of the Principals of Medical Colleges in  the State and such others as may be nominated by the Government.  The 1973  Rules came to be repealed by another set of Rules dated 13th August, 1979 made  under proviso to Article 309 of the Constitution, called ’The Orissa Medical  Education Service (Recruitment) Rules, 1979 (for short, ’1979 Rules’).  Under  these Rules, vide sub-rule (2) of Rule 4, minimum qualification of postgraduate  degree in the concerned specialty or any other equivalent degree or qualification as  prescribed by the Council was provided for appointment of Junior Teachers.  Rule  3(f) provided that Selection Board was to be constituted with member of the  OPSC as its Chairman.  The Secretary to Government in the Health and Family  Welfare Department, DHET and Principals of the Medical Colleges were to be its  members.  On 20th September, 1979, the Director of Medical Education and  Training (DMET) issued advertisement-inviting applications from eligible  candidates for appointment as Junior Teachers in various disciplines/specialties.   The Selection Board as per 1979 was, however, never constituted.  According to  Government, as many posts of Junior Teachers remained vacant for long time, the  Chief Minister passed orders on 27th January, 1980 to fill up those posts by ad hoc  appointments without constituting a Selection Board under 1979 Rules.  Despite  1973 Rules having been repealed, the Selection Board appointed on 3rd August,  1979 under the repealed Rules was allowed to make the selections.  After  obtaining orders of the Chief Minister on 4th August, 1980, orders were issued by  the State Government to the selected candidates appointing them as Junior  Teachers on ad hoc basis.  Some appointments were also made on 11th November,  1980.  In all, 49 candidates came to be appointed as Junior Teachers on ad hoc  basis by the Government.  On 9th February, 1982, the recommendations of the

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Selection Board constituted under the 1973 Rules, were referred to the OPSC  along with the entire list of 145 candidates who had applied for the post pursuant  to the advertisement dated 20th September, 1979.  The OPSC refused to concur  with the ad hoc appointments of these 49 Junior Teachers.  This led to the  enactment of the Validating Act by which all the 49 Junior teachers appointed on  ad hoc basis by the Government were deemed to have been validly and regularly  appointed in the service from the date of their appointment as such.   The Administrative Tribunal by its order dated 30th November, 1998  declared the Validating Act ultra vires and inoperative.  The decision of the  Tribunal has been upheld by the Division Bench of the Orissa High Court by the  impugned judgment. In the aforenoticed background, primary issue which comes up for our  consideration is about the validity of the Validating Act.  It would be useful to  reproduce sub-sections (1) and (2) of  Section 3 of the Validating Act, which read  as under:-  " Sec.3 (1) Notwithstanding anything contained in the  Recruitment Rules 49 Junior Teachers appointed on ad  hoc basis by the Government of Orissa from out of the  regularly recruited Assistant Surgeons and posted in  Medical Colleges of the State during the years 1980  and 1981 and are continuing as such on the date of  commencement of this Act, shall, for all intends and  purposes, be deemed to have been validly and  regularly appointed in the service from the date of their  appointment as such and no such appointment shall be  challenged in any court of law merely on the ground  that such appointments were made otherwise than in  accordance with the procedure laid down in the  Recruitment Rules.

Sec.3 (2) The inter se seniority of the Junior Teachers  whose appointments are so validated under Sub  Section (1) shall be determined on the basis of their  respective date of appointment as such."

On 29th November, 2001, while issuing notice, this Court declined to  interfere with the order to the extent it struck down Section 3(2) of the Validating  Act and only issued limited notice concerning the validity of Section 3(1).  Thus  the only question that has been urged by learned counsel is about the validity of  Section 3(1). In the objects and reasons of the Validating Act, it has been stated that  OPSC has turned down the panel of 49 Junior Teachers and if their services are  terminated they would face extreme financial hardships besides the State’s  vacancies position.  The Act has been brought to validate these appointments as  there is no scope to regularise their services within the framework of 1979 Rules.

Clearly, all the appointments were wholly illegal.  They were not in  accordance with 1979 Rules.  The Selection Board was not constituted in terms  required by the 1979 Rules which stipulates a member of OPSC to be the  Chairman of the Selection Board.  The OPSC declined to concur with the illegal  appointments.  The question is whether such appointments stood regularised on  enactment of the Validating Act under consideration. In R.N.Nanjundappa  v. T.Thimmiah and Anr. [ (1972) 1 SCC 409 ], this  Court held that "If the appointment itself is in infraction of the rules or if it is in  violation of the provisions of the Constitution illegality cannot be regularized.  Ratification or regularization is possible of an act which is within the power and  province of the authority but there has been some non compliance with procedure  or manner which does not go to the root of the appointment."   

It would be pertinent to note here that the irregularity in the appointment in  the above mentioned case was sought to be regularised by way of a Rule made  under proviso to Article 309 of the Constitution.  The above observations were  made in that context.  In the present case the appointments are sought to be  regularised by way of an Act of Legislature.  In our view the safeguards

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mentioned above would also be applicable in cases where the appointments are  sought to be regularised by way of an Act of the Legislature. It is an admitted position that the provisions of 1979 Rules were not  followed and the appointments made in 1980 were after the said Rules had been  enforced.  It seems that the State Government wanted to bypass the OPSC.  The  Selection Board comprising of a member of OPSC as its Chairman was never  constituted, and the selections were sought to be made by the Board constituted  under the 1973 Rules.  This, in our opinion, is an illegality which strikes at the  root of the appointment and, therefore, it is beyond the scope of the Legislature to  validate such illegal appointments as any such attempt would violate Articles 14  and 16 of the Constitution.  It may also be noted that the ground that OPSC failed  to appoint a member as the Chairman of the Selection Board in accordance with  1979 Rules and in the light of the urgency to fill up the vacancies, the said  vacancies were filled up by the Selection Board constituted under the 1973 Rules,  does not appear to be correct.  The facts on record show a contrary position.  By a  letter dated 4th September, 1979, the Chairman of the OPSC had offered himself to  be the Chairman of the Selection Board but no Selection Board was constituted  under the 1979 Rules.  A clarification in this regard was sought by OPSC by its  letter dated 24th March, 1982 wherein the OPSC had specifically sought for an  explanation in regard to the circumstances under which a member of the OPSC  was not associated in the Selection Board meetings held on 04th July, 1980 and  10th November, 1980.  In reply dated 20th September, 1982 to the above letter, the  Secretary to the Government of Orissa, Health and Family Welfare Department  did not clarify the abovementioned query and vaguely stated that : "A large number of Junior Teaching posts in different  discipline were lying vacant in the three Medical  Colleges and their attached hospitals of the State.  In  the interest of teaching it was considered absolutely  necessary to fill up the said posts on ad hoc basis  immediately.  As such it was decided to fill up the  available vacancies by way of ad hoc appointments  after screening the bio data of the eligible candidates at  the Government level".

Mr. Misra contended that 49 Junior Teachers appointed in the year 1980  may be deemed to be regularised, they  having been in service for so many years.   Before we examine the decision in Narender Chadha and Ors. v. Union of India  and Ors. [ (1986) 2 SCC 157 ] relied upon by Mr.Misra, it may be noted that right  from the beginning OPSC has been objecting to the selection.  The State  Government for the reasons best known to it was not interested in constituting a  Selection Board with a member of OPSC as its Chairman which was the  requirement of the 1979 Rules.  In Narender Chadha’s case the question that  came up for consideration was altogether different, namely, the determination of  seniority between the promotees and the direct recruits.  Under Rule 8 (1) (a) (ii)  of the Rules under consideration in the said case, the quota of the promotees was  restricted to 25 per cent.  The fact that the petitioners were not promoted by  following the actual procedure prescribed under Rule 8 (1) (a) (ii) was accepted  but this Court observed with the fact remained that they had been working in the  posts for number of years;  appointments were made in the name of the President  by the competent authority; they have been continuously holding these posts;  they  were paid all along the salaries and the allowances payable to the incumbents of  such posts and  had not been asked to go back to the posts from which they were  promoted at any time since the dates of their appointments and the order of  promotion issued in some cases showed that they were promoted in the direct line  of their promotions and, therefore, this Court came to the conclusion that it was  idle to contend that the petitioners are not holding the posts in Grade IV of the two  services in question and further it would be unjust at this distance of time on the  facts and in the circumstances of the case before the Court, to hold that the  petitioners are not holding the posts in Grade IV.  The Court, however, added a  note of caution by observing that it is not a view of the Court that whenever a  person is appointed in a post without following the rules prescribed for  appointment to that post, he should be treated as a person regularly appointed to  that post.  In the present case, we are considering the validity of the appointments  that were admittedly made without following 1979 Rules.  The decision in  Narender Chadha’s case was rendered having regard to the factual scenario in

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that case.   It cannot be pressed into service to support entirely illegal  appointments.         Reliance has also been placed by learned counsel to Para 7 of the decision  in State of Orissa and Anr. v. Gopal Chandra Rath and Others [(1995) 6 SCC  242] holding that the Validation Act has removed the lacuna by changing the  definition of the Selection Committee and consequently validating the  appointments made by such committee during the period in question.   In the said  case, the basis for illegality pointed out by this Court was changed by Validating  Act.  It was held that it is too well settled that the Legislature has the power to  validate an Act by removing the infirmity indicated in any judgment and that too  also retrospectively but they cannot merely set aside, annul or override a judgment  of the Court.  The infirmity pointed out by the Court therein was to the effect that  the Selection Committee had not been appointed by the State Government as  required under the Rules and, therefore, the process of selection was vitiated.  The  Validating Act changed the definition of the Selection Committee unlike the case  in hand.  The decision renders no assistance in the present case.         In celebrated Constitution Bench decision in the case of Shri Prithvi  Cotton Mills Ltd. and Another v. Broach Borough Municipality and Others  [(1969) 2 SCC 283], the principles about validating statues were laid down.  It was  held that if the legislature has the power over the subject-matter and competence  to make a valid law, it can at any time make such a valid law and make it  retrospectively so as to bind even past transaction.  The validity of a Validating  Law, therefore, depends upon whether the Legislature possesses the competence  which it claims over the subject-matter and whether in making the validation it  removes the defect which the courts had found in the existing law and makes  adequate provisions in the Validating Law for a valid imposition of the tax.  In the  present case, this decision cited by Mr.Misra will have no application since neither  the question of competence to make a valid law is in issue nor is there any  question about removal of defect pointed out by the Court. The question here is about the validity of the validating statute seeking to  regularise illegal appointments without either repealing 1979 Rules or changing  the definition of the Selection Board.    Learned counsel for the appellant has also  placed reliance on the decision in the case of  Vijay Mills Company Limited and  Ors. v. State of Gujarat and Ors. [(1993) 1 SCC 345].   The Court referred to  various decisions which considered the law of validation generally including the  decision in the case of Prithvi Cotton Mills (supra).  The conclusions have been  set out in Para 18 that there are different modes of validating the provisions of the  Act retrospectively, depending upon the intention of the Legislature in that behalf.   Where the Legislature intends that the provisions of the Act themselves should be  deemed to have been in existence from a particular date in the past and thus to  validate the actions taken in the past as if the provisions concerned were in  existence from the earlier date, the Legislature makes the said intention clear by  the specific language of the Validating Act.  It is open for the Legislature to  change the very basis of the provisions retrospectively and to validate the actions  on the changed basis.  In the said case, it was held that the Legislature had  changed the very basis of the provisions retrospectively as was apparent from the  provisions of the Amending Act.  In the present case as already noticed, the  validating statute has done nothing of the kind and only sought to regularise illegal  appointments without repealing the rules that were applicable at the relevant time  or amending the definition of the Selection Board with retrospective effect. Reliance was also placed by Mr. Misra on Para 32 of the decision in the  case of I.N. Saksena v. State of Madhya Pradesh [(1976) 4 SCC 750] holding  that the State Legislature had legislative competence not only to change the  service conditions of the State civil servants with retrospective effect but also to  validate with retrospective force invalid executive orders retiring the servants,   because such validating legislation must be regarded as subsidiary or ancillary to  the power of legislation on the subject covered by Entry 41. We are unable to see the relevance on the aforesaid decision for the present  purpose.  As already stated, no one has questioned here the legislative competence  to change the service conditions of State civil servants with retrospective effect.   The question is whether the change has been effected at all.  We have already  noted that the legislation did not effect any change.  It only states that irregular  appointments will be legal.  The basis of illegality has not at all been changed by  the legislation. It was also contended that 1973 Rules will be applicable and not 1979

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Rules.  We cannot permit the appellants to urge this point since it was not urged  earlier and is sought to be put forth for the first time during the course of hearing.   Further, as already noted, the advertisement was issued after 1979 Rules had been  enforced.  In fact, in terms of 1979 Rules, the State Government desired OPSC to  regularise the illegal appointments.  Since OPSC did not concur, the validating  statute was enacted.  Reliance placed on B.L.Gupta and Anr. v. M.C.D. [(1998) 9  SCC 223] for the proposition that 1973 Rules will be applicable and not 1979  Rules is misplaced.  The said decision is not relevant on the issue of constitution  of Selection Board as per requirements of 1979 Rules. Drawing support from the observation made in H.C. Puttaswamy and Ors.  v. The Hon’ble Chief Justice of Karnataka High Court, Bangalore and Ors.  [1991 Supp. (2) SCC 421], it was contended that the illegal appointees can also be  treated to be regularly appointed.  In the relied upon decision, this Court, after  having reached the conclusion about the invalidity of the impugned appointments  made by the Chief Justice, but, having regard to the circumstances of the case,  since the consequence would have been to uproot the employees, adopted a  humanitarian approach and held on facts that appointees deserved mercy.  True,  this Court has ample powers in a given case to direct regularisation of illegal and  unsupportable appointments, if the justice of any particular case so demands but it  cannot be taken as a rule of general application to perpetuate illegalities.  Such a  course is to be resorted to in exceptional circumstances.  We do not think that the  present case falls in that category.  The OPSC was sought to be deliberately  bypassed.  There are no equities in favour of appellant who cannot be placed on a  higher pedestal over those who were selected by OPSC and stood the test of  merits, became successful and were appointed as per relevant Rules.  We may also  note that on 4th October, 1982, 1979 Rules were amended and selection through  Selection Board was done away with and it was prescribed that the selection shall  be made through OPSC. We may further note that Section 3(1) amounts to deeming of a legal  position without deeming of a fact.  It was observed in the case of Delhi Cloth and  General Mills Co. Ltd. v. State of Rajasthan & Ors. [(1996) 2 SCC 449] that "a  legal consequence cannot be deemed nor, therefrom, can the events that should  have preceded it.  Facts may be deemed and, therefrom, the legal consequences  that follow."  In this case the procedure as prescribed under Sections 4 to 7 of  Rajasthan Municipalities Act, 1959, for inclusion of the villages of Raipura and  Ummedganj in Kota Municipality was not followed. Under the Courts order and  Judgment, Kota Municipality was restrained from imposing tax on the petitioner  Company, which was situated in the said villages, on the ground that the said  villages were not validly included in the Kota Municipality.  Sections 4 to 7 of the  Rajasthan Municipalities Act, 1959 remained on statute book unamended when  the Kota Municipal Limits (Continued Existence) Validating Act, 1975 was  passed.  Section 3 of the Validating Act provided that:- "Notwithstanding anything contained in Sections 4 to  7 of the 1959 Act or in any judgment, decree, order or  direction of any court, the villages of Raipura and  Ummedganj should be deemed always to have  continued to exist and they continue to exist within the  limits of the Kota Municipality, to all intents and for  all purposes"   

The validity of the Validating Act was in question. This Court observed  that "the Validating Act provides that, notwithstanding anything contained in  Sections 4 to 7 of 1959 Act or in any judgment, decree, order or direction of any  court, the villages of Raipura and Ummedganj should be deemed always to have  continued to exist and they continue to exist within the limits of the Kota  Municipality, to all intents and for all purposes. This provision requires the  deeming of the legal position that the villages of Raipura and Ummedganj fall  within the limits of the Kota Municipality, not the deeming of facts from which  this legal consequence would flow. A legal consequence cannot be deemed nor,  therefrom, can the events that should have preceded it. Facts may be deemed  and, therefrom, the legal consequences that follow." (Emphasis supplied).  For  the reasons and on the ground that the Validating Act did not cure the defect  leading to the invalidity of the inclusion of the said villages in Kota Municipality,  the validating Act was held to be invalid.          The deeming clause in the present case is to the same effect as that of the

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above mentioned case.  The legal consequences of appointments being regular has  been deemed without deeming facts either of repealing 1979 Rules and making  1973 Rules operative or changing the basis, namely, definition of Selection of  Board.  In this view, we have no hesitation in holding that Section 3(1) has to meet  the same fate as was met by Validating statute in Delhi Cloth Mills case.  The validity of the Validating Act is further assailed on the ground that it  by mere declaration validates the invalid appointments without removing the basis  of invalidity of the appointments made. Black’s Law Dictionary (7th Edition,  Page no.1421) defines Validation Acts as "a law that is amended either to remove  errors or to add provisions to confirm to constitutional requirements".  In the case  of Hari Singh & Ors. v. The Military Estate Officer & Anr. [(1972) 2 SCC 239]  the Supreme Court held that "The meaning of a Validating Act is to remove the  causes for ineffectiveness or invalidating of actions or proceedings, which are  validated by a legislative measure".  The Supreme Court in the case of ITW  Signode India Limited vs. Collector of Central Excise [(2004) 3 SCC 48]  observed that "A Validation Act removes actual or possible voidness, disability or  other defect by confirming the validity of anything, which is or may be invalid."   The purpose of a Validating Act is to remove the cause of ineffectiveness or  invalidity. A Validating Act presupposes a positive act, on the part of the  legislature, of removing the cause of ineffectiveness or invalidity.  In the present  case nothing has been done.   Before concluding, we may notice another aspect that was pointed out by  learned counsel.  The Tribunal in its order observed that rightly or wrongly, Dr.  K.C. Biswal, Dr. S.N. Mishra and Dr. S.C. Misra have been promoted to the  higher rank since a long time and they have been holding such higher position on  the basis of the recommendation of the OPSC and in such circumstances, it would  be unjust to pass any orders to disturb them from their present positions.  Learned  counsel for Dr. Satchidananda Misra contended that the High Court has not  disturbed the aforesaid directions of the Tribunal.  On the other hand, learned  counsel for Dr. Rama Raman Saranji (Respondent No.4 in CA No.8039/03)  contended that the writ petition filed by his client challenging the aforesaid  direction of the Tribunal is pending before the High Court.  In this view, on this  aspect, we express no opinion leaving it to be decided by the High Court in  accordance with law.   In the light of the above discussion, the judgment and order of the Orissa  High Court is upheld and accordingly the appeals are dismissed but leaving the  parties to bear their own costs.  The contempt petition and Special Leave Petitions  are also disposed of in terms of this judgment.