IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1741 OF 2009 (Arising out of S.L.P. (C) 16871 of 2007)

State of Bihar   … Appellant

Versus

Upendra Narayan Singh & others … Respondents

JUDGMENT

G.S. SINGHVI, J.

1. Leave granted

2. After  taking  cognizance  of  the  fact  that  large  number  of  ad  hoc

appointments were being made in different departments without complying with the

relevant  rules  and procedure,  the Government of  Bihar vide its  Circular No.7260

dated 27.4.1979 which  was followed by another  Circular No.3001 dated 16.3.1982

imposed  ban  on  such  appointments.   Notwithstanding  this,  ad  hoc  appointments

continued  to  be  made  in  violation  of  the  rules  and  relevant  instructions.   This

compelled the State Government to pass order dated 10.3.1985 for cancellation of ad

hoc appointments and for filling the vacancies in accordance with the rules.  After

one year, the issue relating to large scale illegalities committed in the making of ad

hoc  appointments  was  raised  in  the  Bihar  Legislative  Assembly  and  members

expressed concern over such appointments.   In the backdrop of this  development,

Chief Secretary, Government of Bihar vide his letter dated 11.6.1986 made it clear to

all  the  Secretaries  to  the  Government,  Heads  of  Departments,  Divisional

Commissioners and District Magistrates that they will be personally responsible for

the compliance of the rules and instructions in the making of ad hoc appointments.

It, however, appears that the ban imposed by the State Government was relaxed qua

Animal Husbandry Department and vide letter dated 4.7.1987, Under Secretary to

the Government informed the Director, Animal Husbandry that for implementation

of  the schemes being operated by the department, appointments may be made on

Class IV posts by committees comprising of Regional Director, Animal Husbandry as

Chairman, Regional Joint  Director,  Animal Husbandry/Assistant  Director,  Animal

Husbandry as  Secretary and one officer  belonging  to Scheduled  Castes/Scheduled

Tribes.   

3. By taking advantage of letter dated 4.7.1987, Dr. Darogi Razak, the then

Regional Director,  Animal Husbandry, Gaya, made a number of  appointments on

Class III and Class IV posts without issuing any advertisement or sending requisition

to  the  employment  exchange  and  without  making  selection  of  any  sort.  The

respondents were also beneficiaries of the largess doled out by Dr. Darogi Razak in

violation of instructions issued by the Chief Secretary and the Animal Husbandry

Department.  They were appointed as Class IV employees on 9.10.1991 (respondent

no.1),  24.10.1991  (respondent  no.2)  and  27.10.1991  (respondent  nos.  3,  4  and  5).

Copies of the orders of appointment of the respondents have been placed on record

along with affidavit dated 8.9.2008 of Dr. Ram Narayan Singh, Joint Director (HQ),

Animal Husbandry, Animal Husbandry and Fisheries Resources Department, Bihar.

For the sake of reference, the relevant extracts of English translation of order passed

in the case of respondent no.1 – Upendra Narayan Singh are reproduced below:

“OFFICE OF REGIONAL DIRECTOR, ANIMAL HUSBANDRY, MAGADH RANGE, GAYA

ORDER

In exercising the power given by letter no.5094 dated 04.07.1987  and  letter  no.3430  dated  14.12.1977  of  Deputy Secretary,  Department  of  Animal  Husbandry  and  Cooperative, the adhoc appointments of the following persons on the class IV posts in the scale Rs.775-12-955-14-1025 are made.

Their  services  can  be  terminated  without  any  prior notice.

Health certificate from Civil  Surgeon will  have to be produced at the time of joining.  

No TA/DA is admissible at the time of joining.

Sl.No. Name and Address Post

1. Sri Upendra Narayan Singh Class IV S/o Sri Awdhesh Singh Vill + P.O. Kunda Distt Aurangabad

Sd/-        Regional Director

     Animal Husbandry Magadh Range, Gaya

Memo no 1467 (CON) Dated 09.10.1991 Copy to Serial no.1 for information.”

4. On receipt of complaints that ad hoc appointments had been made in the

department  for  extraneous  considerations,  Secretary  to  the  Government,  Animal

Husbandry  and  Fisheries  Department  issued  circular  dated  28.10.1991  whereby

instructions contained in letter dated 4.7.1987 were superseded and it was directed

that such appointments should be made strictly in accordance with the instructions

issued by the Chief Secretary.  However, no step appears to have been taken in the

matter of illegal/irregular appointments already made, till  the issue of letter dated

16.4.1996  by  the  Secretary  of  the  department  to  the  Director  that  in  view of  the

institution of criminal case against the then Regional Director, Animal Husbandry,

Gaya, payment of salary to those appointed by him should be stopped.

5. On  receipt  of  communication  from  the  Secretary,  Director,  Animal

Husbandry  got  conducted  an  inquiry  into  the  appointments  made  by  the  then

Regional  Director,  Animal  Husbandry,  Gaya.   In  that  inquiry,  it  was  found  that

about  5  dozen  appointments  were  made  without  sanctioned  posts  and  without

following the procedure prescribed vide circular dated 4.7.1987.  Thereafter, notices

dated 3.5.2001 were issued to the respondents requiring them to show cause against

the proposed termination of their services.  In their replies, the respondents claimed

that  the  Regional  Director  had  appointed  them  after  due  selection  and  that  the

enquiry got conducted by the Director, Animal Husbandry cannot be made basis for

terminating their  services after a gap of  almost 10 years.   After considering their

replies,  the  competent  authority  passed  orders  dated  23.5.2001  terminating  the

services of the respondents, who challenged the same by filing a petition under Article

226 of the Constitution of India, which was registered as CWJC No. 7816 of 2001.

The  respondents  pleaded  that  the  action  taken  against  them was  vitiated  due  to

violation of the rules of natural justice and arbitrary exercise of power because the

concerned authority did not give them the effective opportunity of hearing and the

instruction contained in memorandum dated 16.4.1996 could not have been applied to

their case because they had been appointed prior to cut off date specified therein i.e.

28.10.1991.  The appellant herein contested the writ  petition by asserting that the

services  of  the writ  petitioners were terminated because their  initial  appointments

were illegal.   

6. The learned Single Judge relied upon the order passed in CWJC No.5140

of 1998 and quashed the termination of the respondents’ services with a direction that

they be reinstated with consequential benefits.  Letters Patent Appeal No.61 of 2007

filed by the appellant was dismissed by the Division Bench on the ground that similar

appeals  filed  in the  cases  of  Arun Kumar and others  and  Arjun Chaudhary had

already been dismissed.  In the opinion of the Division Bench, a different view could

not  be  taken  in  the  case  of  the  respondents  because  that  would  give  rise  to  an

anomalous situation.

7. Learned counsel for the appellant argued that the High Court committed

serious error by ordering reinstatement of the respondents ignoring that their initial

appointments were ex facie illegal inasmuch as the concerned authority did not follow

any procedure consistent with the doctrine of equality enshrined in Articles 14 and 16

of the Constitution as also the instructions issued by the Government for making ad

hoc  appointments.   Learned  counsel  emphasized  that  even  while  making  ad  hoc

appointment, the competent authority is required to advertise the posts or at least

send requisition to the employment exchange and make selection from amongst the

eligible persons, but no such procedure was followed by the then Regional Director,

Animal Husbandry, Gaya, before appointing the respondents.  Shri Nagendra Rai,

learned senior counsel appearing for the respondents submitted that the directions

given for reinstatement of his clients may not be disturbed because other similarly

situated persons have already been reinstated pursuant to the directions given by the

High  Court.   To  buttress  this  submission,  the  learned  senior  counsel  invited  the

Court’s attention to the orders passed in CWJC No.13328/1992 – Rangosh Sharma

and others v. State of Bihar, CWJC No.15571/2001 – Arjun Choudhary v. State of

Bihar and others, CWJC No.6554/2000 – Birendra Kumar Singh v. State of Bihar

and others, LPA No.325/2000 – State of Bihar and others v. Arun Kumar and others

and LPA No. 47/2006 – State of Bihar and others v. Arjun Choudhary.  Shri Rai then

referred to the averments contained in paragraph 4 of the counter-affidavit  to the

Special Leave Petition to show that services of the respondents were regularized in

1992 and argued that the concerned authority illegally terminated their services by

assuming that they were ad hoc appointees.   

8. We have given serious thought to the entire matter and also gone through

the statement furnished by learned counsel  for the appellant during the course of

arguments.  Equality of opportunity to all irrespective of their caste, colour, creed,

race,  religion  and  place  of  birth  which  constitutes  one  of  the  core  values  of  the

Universal  Declaration  of  Human  Rights  also  forms  part  of  preamble  to  the

Constitution of India, which reads as under:-

“WE,  THE  PEOPLE  OF INDIA,  having  solemnly  resolved  to constitute  India  into  a  SOVEREIGN  SOCIALIST  SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity;

and to promote among them all;

FRATERNITY  assuring  the  dignity  of  the  individual  and  the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

9. For  achieving  various  goals  set  out  in  the  preamble,  framers  of  the

Constitution  included  a  set  of  provisions  in  Part  III  with  the  title  “Fundamental

Rights” and another set of provisions in Part IV with the title “Directive Principles of

State Policy”.  The provisions contained in Part III of the Constitution by and

large contain negative injunctions against State’s interference with the fundamental

rights of individuals and group of individuals and also provide for remedy against

violation of such rights by direct access to the highest Court of the country.  Part IV

enumerates  State’s  obligation  to  make  policies  and  enact  laws  for  ensuring  that

weaker segments (have nots) of the society are provided with opportunities to come

up to a level where they can compete with others (haves).

10. The inclusion of a set of fundamental rights in India’s Constitution had its

genesis in the forces that operated in the national struggle during British rule.  Some

essential rights like personal freedom, protection of one’s life and limb and of one’s

good  name,  derived  from  the  common  law  and  the  principles  of  British

jurisprudence,  were well  accepted and  theoretically  recognized by  various  British

enactments. By way of illustration, reference can be made to Section 87 of the Charter

Act of 1883 wherein it was laid down that no native of the British India shall  by

reason only of his religion, place of birth, descent, colour, or any of them, be disabled

from holding any place, office or employment under the Company.  The substance of

this provision was incorporated in Section 96 of the Government of India Act, 1915.

In  the  Government  of  India  Act,  1935,  the  guarantee  against  discrimination  was

reiterated and given extended meaning.  However, in pre-independence period there

was no chapter of fundamental rights of a justiciable nature and even the safeguards

provided under various statutes could be taken away by the British Parliament or a

legislative authority in India (The Framing of India’s Constitution, Vol. II, edited by

B. Shiva Rao).   

11. The  Constituent  Assembly  which  prepared  draft  of  the  Constitution

extensively  debated  on  the  necessity  of  having  a  separate  chapter  relating  to

fundamental rights. The principle of guaranteeing to every person equality before the

law and the equal protection of the laws, was first included in the drafts submitted to

the  Sub-Committee  on  Fundamental  Rights  by  Shri  K.M.  Munshi  and  Dr.  B.R.

Ambedkar.  After discussing the matter and considering the suggestions made by Shri

B.N. Rau, Alladi Krishnaswami Ayyar, Shri K.M. Munshi and others, the final draft

of Article 14 was adopted, which now reads as under:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The  principle  of  non-discrimination  on grounds  of  religion,  race,  colour,  caste  or

language in the matter of public employment was contained in the drafts submitted

by Shri K.M. Munshi and Dr. B.R. Ambedkar.  Shri K.T. Shah and Shri Harnam

Singh also incorporated this  basic  principle  in  clauses 2 and 8 of  their  respective

drafts.  When the Sub-Committee on Fundamental Rights discussed the subject, Shri

K.T.  Shah  pressed  his  view  that  the  Constitution  should  guarantee  non-

discrimination,  not  only  in “public  employment” but  also  in  “employment  in  any

enterprise aided or assisted by the State”. However, his suggestion was not accepted

by the Sub-Committee.  The issue was then debated in the context of demand for

incorporation of a clause enabling the State to provide for reservation in favour of

backward classes, etc. and ultimately the draft was adopted (The Framing of India’s

Constitution, Vol. II, edited by B. Shiva Rao).  Clauses (4A) and (4B) were added to

Article 16 by the Constitution (77th Amendment) Act, 1995.  Article 16 in its present

form reads as under:

“16. Equality of opportunity in matters of public employment. – (1)  There  shall  be  equality  of  opportunity  for  all  citizens  in matters  relating  to  employment  or  appointment  to  any  office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or  other  authority  within,  a  State  or  Union  territory,  any requirement as to residence within that State or Union territory prior to such employment or appointment.

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of  any backward class  of  citizens  which,  in  the opinion  of  the State,  is  not  adequately  represented  in  the  services  under  the State.

(4A) Nothing  in  this  article  shall  prevent  the  State  from making any provision for reservation in matters of  promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled  Tribes  which,  in  the  opinion  of  the  State,  are  not adequately represented in the services under the State.

(4B) Nothing  in  this  article  shall  prevent  the  State  from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies  of  the  year  in  which  they  are  being  filled  up  for determining  the  ceiling  of  fifty  per  cent  reservation  on  total number of that year.

(5) Nothing in this article shall  affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member  of  the  governing  body  thereof  shall  be  a  person professing  a  particular  religion  or  belonging  to  a  particular denomination.”

12. In E.P.  Royappa v.  State  of  Tamil  Nadu and others

[(1974)  4  SCC  3],  the  Constitution  Bench  negatived  the

appellant’s  challenge  to  his  transfer  from  the  post  of  Chief

Secretary of the State to that of Officer on Special Duty.  P.N.

Bhagwati,  J.  (as  His  Lordship  then  was)  speaking  for  himself,

Y.V.  Chandrachud  and  V.R.  Krishna  Iyer,  JJ.  considered  the

ambit and reach of Articles 14 and 16 and observed :

“Article  14  is  the  genus  while  Article  16  is  one  of  its  species. Article  14  declares  that  the  State  shall  not  deny  any  person equality before the law or equal protection of the laws within the territory  of  India.   Article  16  gives  effect  to  the  doctrine  of equality in all matters relating to public employment. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.  No citizen shall be ineligible  for  or  discriminated  against  irrespective  of  any employment  or  office  under  the  State  on  the  grounds  only  of religion, race, caste, sex, descent, place of birth, residence or any of  them.   Though,  enacted  as  a  distinct  and  independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged  in  the  Constitution.   The  basic  principle  which, therefore,  informs  both  Articles  14  and  16  is  equality  and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use  the words  of  Bose.  J.,  “a way of  life”,  and it  must  not  be subjected to a narrow pedantic or lexicographic  approach.  We cannot  countenance  any  attempt  to  truncate  its  all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions  and  it  cannot  be  “cribbed,  cabined  and  confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal  both according to political logic and constitutional  law and is therefore violative of Article 14, and if it effects any matter relating to public  employment,  it  is  also violative of  Article 16. Articles  14  and  16  strike  at  arbitrariness  in  State  action  and ensure fairness and equality of treatment.”

13. The  equality  clause  enshrined  in  Article  16  mandates  that  every

appointment to public posts or office should be made by open advertisement so as to

enable all eligible persons to compete for selection on merit –   Umesh Kumar Nagpal

v. State of Haryana and others [(1994) 4 SCC 138],  Union Public Service Commission

v. Girish Jayanti Lal Vaghela [(2006) 2 SCC 482], State of Manipur and others v. Y.

Token  Singh  and  others  [(2007)  5  SCC  65]  and  Commissioner,  Municipal

Corporation, Hyderabad and others v. P. Mary Manoranjani and another [(2008) 2

SCC 758].  Although, the Courts have carved out some exceptions to this rule, for

example, compassionate appointment of the dependent of deceased employees, for the

purpose of this case it is not necessary to elaborate that aspect.   

14. In Girish Jayanti Lal Vaghela’s case, this Court, while reversing an order

passed by the Central Administrative Tribunal which had directed the Union Public

Service Commission to relax the age requirement in the respondent’s case, elucidated

the meaning of  the expression “equality of  opportunity  for all  citizens  in matters

relating to public employment” in the following words:

“Article  16  which  finds  place  in  Part  III  of  the  Constitution relating  to  fundamental  rights  provides  that  there  shall  be equality  of  opportunity  for  all  citizens  in  matters  relating  to employment or appointment to any office  under the State.  The main  object  of  Article  16  is  to  create  a  constitutional  right  to equality  of  opportunity  and  employment  in  public  offices.  The words ‘employment’ or ‘appointment’ cover not merely the initial appointment but also other attributes of service like promotion and  age  of  superannuation,  etc.  The  appointment  to  any  post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee  whose  members  are  fair  and  impartial  through  a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without  issuing advertisement in the prescribed manner which may in some cases include  inviting  applications  from  the  employment  exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing  advertisement  inviting  applications  from  eligible candidates  and  without  holding  a  proper  selection  where  all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.”

15. For  ensuring  that  equality  of  opportunity  in  matters  relating  to

employment becomes a reality for all, Parliament enacted the Employment Exchanges

(Compulsory Notification of Vacancies) Act, 1959 (for short ‘the 1959 Act’).  Section 4

of that Act casts a duty on the employer in every establishment in public sector in the

State or a part thereof to notify every vacancy to the employment exchange before

filling up the same.  In Union of India and others v. N. Hargopal and others [(1987) 3

SCC 308], a two-Judge Bench of this Court considered the question whether persons

not  sponsored  by  the  employment  exchange  could  be  appointed  to  the  existing

vacancies.  The High Court of Andhra Pradesh had ruled that the provisions of 1959

Act are not applicable to Government establishment; that the Act does not cast duty

either on the public  sector establishment or on the private sector establishment to

make  the  appointments  from  among  candidates  sponsored  by  the  employment

exchanges  only,  and  that  instructions  issued  by  the  Government  of  India  that

candidates sponsored by the employment exchanges alone should be appointed are

contrary to Articles 14 and 16.  This Court referred to Sections 3 and 4 of the 1959

Act, adverted to the reasons enumerated in the counter-affidavit filed on behalf of the

Union of India before the High Court to justify the appointments only from among

the candidates sponsored by the employment exchange and held:  

“………  The object  of  recruitment to  any service  or  post  is  to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary  to  eliminate  arbitrariness  and  favouritism  and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments  as  he  likes,  a  grave  element  of  arbitrariness  is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that  insistence  on recruitment  through  Employment  Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method  of  recruitment,  we  think  that  any  restriction  that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution.”

In  Excise  Superintendent,  Malkapatnam,  Krishna  District,  A.P.  v.  K.B.N.

Visweshwara  Rao  and  others   [(1996)  6  SCC  216],  a  three-Judge  Bench  while

reiterating that the requisitioning authority/establishment must send intimation to the

employment  exchange  and  the  latter  should  sponsor  the  names  of  candidates,

observed:

“…. It is common knowledge that many a candidate is unable to have  the  names  sponsored,  though  their  names  are  either registered  or  are  waiting  to  be  registered  in  the  employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that  it  should  be  mandatory  for  the  requisitioning authority/establishment  to  intimate  the  employment  exchange, and  employment  exchange  should  sponsor  the  names  of  the candidates to the requisitioning departments for selection strictly according  to  seniority  and  reservation,  as  per  requisition.  In addition,  the  appropriate  department  or  undertaking  or establishment  should  call  for  the  names  by  publication  in  the newspapers  having  wider  circulation  and  also  display  on  their office  notice  boards  or  announce  on  radio,  television  and employment news bulletins; and then consider the cases of all the candidates who have applied.  If  this procedure is  adopted, fair play  would  be  subserved.  The  equality  of  opportunity  in  the matter  of  employment  would  be  available  to  all  eligible candidates.”

The  same principle  was  reiterated in  Arun Kumar Nayak v.  Union  of  India  and

others [(2006) 8 SCC 111] in the following words:

“This Court in  Visweshwara Rao, therefore, held that intimation to the employment exchange about  the vacancy and candidates sponsored  from  the  employment  exchange  is  mandatory.  This Court also held that in addition and consistent with the principle of  fair  play,  justice  and  equal  opportunity,  the  appropriate department or  establishment  should  also  call  for  the  names by publication  in  the  newspapers  having  wider  circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment. The rationale behind such direction is

also  consistent  with  the  sound  public  policy  that  wider  the opportunity of the notice of vacancy by wider publication in the newspapers, radio, television and employment news bulletin, the better candidates with better qualifications are attracted, so that adequate  choices  are  made  available  and  the  best  candidates would be selected and appointed to subserve the public  interest better.”

16. The ratio of the above noted three judgments is that in terms of Section 4

of the 1959 Act, every public employer is duty bound to notify the vacancies to the

concerned employment exchange so as to enable it to sponsor the names of eligible

candidates and also advertise the same in the newspapers having wider circulation,

employment  news  bulletins,  get  announcement  made  on  radio  and  television  and

consider all  eligible  candidates  whose  names may be forwarded  by the concerned

employment  exchange  and/or  who  may  apply  pursuant  to  the  advertisement

published in the newspapers or announcements made on radio/television.

17. Notwithstanding  the  basic  mandate  of  Article  16  that  there  shall  be

equality  of  opportunity  for  all  citizens  in  matters  relating  to  employment  for

appointment  to  any  office  under  the  State,  the  spoil  system  which  prevailed  in

America in 17th and 18th centuries  has  spread its  tentacles  in  various  segments  of

public employment apparatus and a huge illegal employment market has developed

in  the  country  adversely  affecting  the  legal  and  constitutional  rights  of  lakhs  of

meritorious members of younger generation of the country who are forced to seek

intervention of the court and wait for justice for years together.  

SPOIL SYSTEM – A BIRD’S EYE VIEW:

18. In 17th and 18th centuries a peculiar system of  employment prevailed in

America.   Under that  system, leaders  of  the  political  party  which  came to power

considered  it  to  be  their  prerogative  to  appoint  their  faithful  followers  to  public

offices and remove those who did not support the party.  The system was developed in

New York and Pennsylvania more than elsewhere, largely because of the existence in

those States of a large body of apathetic non-English voters.  In New York, the ill-

devised council of appointment had much to do with the growth of this system.  In the

Federal  Government,  Jefferson  implemented  this  system  to  a  large  extent.   The

prescription  of  a  four  year  term  for  various  offices  considerably  increased

appointment of political faithfuls to public offices and positions.  The politicians who

surrounded Jackson brought this system to its full development as an engine of party

warfare. Since then it became a regular feature in every administration.  The phrase

‘spoil system’ was derived from the statement of Senator W L Marcy of New York, in

a speech in the Senate in 1832.  Speaking of the New York politicians, he said: ‘They

see nothing wrong in the rule that to the victor belong the spoils of the enemy’.   By

1840, the spoil system was widely used in Local, State and Federal governments. As a

result of this, America fell far behind other nations in civil service standards of ability

and rectitude. When William Henry Harrison became President in 1841, the practice

of  appointing political  followers reached its  pinnacle.   Between 30,000 and 40,000

office-seekers  converged  on  the  capital  to  scramble  for  23,700  jobs  which  then

comprised the federal service. Numerous persons hired through the spoil system were

untrained for their work and indifferent to it. In the early days, government work

was  simple.  However,  as  government  grew,  a  serious  need  for  qualified  workers

developed.  After Civil War, pressure started building up for reforms in recruitment

to civil services.  The gross scandals of President Ulysses S. Grant's administration

lent credence to the efforts of reformers George W. Curtis, Dorman B. Eaton and

Carl Schurz.   In 1871, Congress authorized the President to make regulations for

appointment to public services and to constitute Civil Service Commission for that

purpose. However, this merit system ended in 1875 because the Congress failed to

provide funds for the same. Nevertheless, the experiment proved the merit system to

be both functional and supportive. President Rutherford B. Hayes was enamored of

reform and began to use competitive examinations as a basis for appointments. In

1881, a spurned office-seeker shot and killed President James A. Garfield. His death

provoked further public outcry for civil service reform and paved way for passage of

a bill  introduced by Sen.  George H. Pendleton of  Ohio.  His  bill  became the Civil

Service  Act  of  1883  and  re-established  the  Civil  Service  Commission.  The  Act

rendered it unlawful  to fill  various federal  offices  by the spoil  system. Since then,

much has been done to avoid the evils of the system. Federal civil service legislation

has been greatly expanded. Many municipalities and states have made training and

experience  as  a  condition  precedent  for  appointment  to  public  offices.  In  the

territories of India ruled by Britishers also a large chunk of jobs went to the faithfuls

of Britishers who were considered fit for serving British interest.

19. With a view to insulate the public employment apparatus in independent

India from the virus of spoil system, the framers of the Constitution not only made

equal  opportunity  in  the  matter of  public  employment  as  an  integral  part  of  the

fundamental rights guaranteed to every citizen but also enacted a separate part, i.e.,

Part XIV with the title “Services under the Union and the States”.  Article 309 which

finds place in Chapter I of this part envisages enactment of laws by the Parliament

and the State Legislatures for regulating the recruitment and conditions of service of

persons appointed to public services and posts in connection with the affairs of the

Union or of any State.  Proviso to this Article empowers the President or such person

as he may direct in the case of services and posts in connection with the affairs of the

Union and the Governor of a State or such person as he may direct in the case of

services and posts and in connection with the affairs of State, to make rules regulating

the recruitment, and the conditions of service of persons appointed, to such services

and posts till the enactment of law by the appropriate legislature. Article 311 which

also  finds  place  in  the same chapter  gives  protection to  the holders  of  civil  posts

against dismissal, removal or reduction in rank by an authority subordinate to the

one  by  which  they  are  appointed.   This  Article  also  provides  that  an  order  of

dismissal, removal or reduction in rank can be passed only after holding an inquiry

and giving reasonable opportunity of hearing to the affected person.  The provisions

contained in Chapter II of Part XIV relate to Public Service Commissions.  Article

315 mandates that there shall be a Public Service Commission for the Union and a

Public Service Commission for each State.  Article 320(1) casts a duty on the Union

and the State Public Service Commissions to conduct examinations for appointments

to the services of the Union and the State respectively.  Clause 3 of Article 320 makes

consultation  with  Union  Public  Service  Commission,  or  the  State  Public  Service

Commission,  as the case may be mandatory on all  matters relating to methods of

recruitment to civil  services and for civil  posts, on the principles to be followed in

making  appointments  to  civil  services  and  posts  and  in  making  promotions  and

transfers from one service to another and on the suitability of candidates for such

appointments, promotions or transfers, on all disciplinary matters affecting a person

serving  under  the  Government  of  India  or  the  Government  of  a  State  in  a  civil

capacity, including memorials or petitions relating to such matters, on any claim by

or in respect of a person who is serving or has served under the Government of India

or the Government of a State or under the Crown in India or under the Government

of an Indian State, in a civil capacity, that any costs incurred by him in defending

legal proceedings instituted against him in respect of acts done or purporting to be

done in the execution of his  duty should be paid out of the Consolidated Fund of

India, or, as the case may be, out of the Consolidated Fund of the State, on any claim

for the award of a pension in respect of injuries sustained by a person while serving

under the Government of India or the Government of a State or under the Crown in

India  or  under  the  Government  of  an  Indian  State,  in  a  civil  capacity,  and  any

question as to the amount of any such award.  This clause also casts a duty on the

Public  Service  Commissions  to  advise  on  any  matter  referred  to  them  by  the

President or the Governor.  

20. However, the hope and expectation of the framers of the Constitution that

after  independence  every  citizen  will  get  equal  opportunity  in  the  matter  of

employment  or  appointment  to  any  office  under  the  State  and  members  of  civil

services would remain committed to the Constitution and honestly serve the people of

this country have been belied by what has actually happened in last four decades.

The Public Service Commissions which have been given the status of Constitutional

Authorities and which are supposed to be totally independent and impartial while

discharging their function in terms of Article 320 have become victims of spoil system.

In the beginning, people with the distinction in different fields of administration and

social  life  were  appointed  as  Chairman  and  members  of  the  Public  Service

Commissions but with the passage of time appointment to these high offices became

personal  prerogatives  of  the  political  head  of  the  Government  and  men  with

questionable  background  have  been  appointed  to  these  coveted  positions.   Such

appointees have, instead of making selections for appointment to higher echelons of

services  on  merit,  indulged  in  exhibition  of  faithfulness  to  their  mentors  totally

unmindful of their Constitutional responsibility.  This is one of several reasons why

most meritorious in the academics opt for private employment and ventures.  The

scenario is worst when it comes to appointment to lower strata of the civil services.

Those who have been bestowed with the power to make appointment on Class III and

Class IV posts have by and large misused and abused the same by violating relevant

rules and instructions and have indulged in favouritism and nepotism with impunity

resulting  in  total  negation  of  the  equality  clause  enshrined  in  Article  16  of  the

Constitution.  Thousands of cases have been filed in the Courts by aggrieved persons

with the complaints that appointment to Class III and Class IV posts have been made

without issuing any advertisement or sending requisition to the employment exchange

as per the requirement of the 1959 Act and those who have links with the party in

power or political leaders or who could pull  strings in the power corridors get the

cake of employment. Cases have also been filed with the complaints that recruitment

to the higher strata of civil services made by the Public Service Commissions have

been affected by the virus of spoil system in different dimensions and selections have

been made for considerations other than merit.

21. Unfortunately, some orders passed by the Courts have also contributed to

the spread of spoil system in this country.  The judgments of 1980s and early 1990s

show that  this  Court  gave  expanded  meaning  to  the  equality  clause  enshrined  in

Articles 14 and 16 and issued directions for treating temporary/ad hoc/daily wage

employees at par with regular employees in the matter of payment of salaries etc.

The  schemes framed by the Governments  and public  bodies  for  regularization  of

illegally appointed temporary/ad hoc/daily wage/casual employees got approval of the

Courts.   In  some  cases,  the  Courts  also  directed  the  State  and  its

instrumentalities/agencies to frame schemes for regularization of the services of such

employees.   In  State  of  Haryana v.  Piara  Singh [(1992)  4  SCC  118],  this  Court

reiterated that appointment to the public posts should ordinarily be made by regular

recruitment through the prescribed agency and that even where ad hoc or temporary

employment  is  necessitated  on  account  of  the  exigencies  of  administration,  the

candidate should be drawn from the employment exchange and that if no candidate is

available or sponsored by the employment exchange, some method consistent with the

requirements of Article 14 of the Constitution should be followed by publishing notice

in appropriate manner calling for applications and all those who apply in response

thereto should be considered fairly, but proceeded to observe that if an ad hoc or

temporary  employee  is  continued  for  a  fairly  long  spell,  the  authorities  are  duty

bound to consider his case for regularization subject to his fulfilling the conditions of

eligibility and the requirement of satisfactory service.  The propositions laid down in

Piara Singh’s case (supra) were followed by almost all High Courts for directing the

concerned State Governments and public authorities to regularize the services of ad

hoc/temporary/daily wage employees only on the ground that they have continued for

a particular length of time.  In some cases, the schemes framed for regularization of

the  services  of  the  backdoor  entrants  were  also  approved.   As  a  result  of  this,

beneficiaries of spoil system and corruption garnered substantial share of Class III

and Class IV posts and thereby caused irreparable damage to the service structure at

the lower levels.  Those appointed by backdoor methods or as a result of favoritism,

nepotism or corruption do not show any commitment to their duty as public servant.

Not only this, majority of them are found to be totally incompetent or inefficient.  

22. In  Delhi  Development  Horticulture  Employees  Union  v.  Delhi

Administration, Delhi and others [(1992) 4 SCC 99], the Court took cognizance of the

illegal employment market which has developed in the country and observed:

“Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240  or  more  days,  has  been  leading.  Although  there  is  an Employment  Exchange  Act  which  requires  recruitment  on  the basis of registration in the Employment Exchange, it has become a common practice  to  ignore  the  Employment  Exchange  and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register.  The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The  employment  is  given  first  for  temporary  periods  with technical breaks to circumvent the relevant rules, and is continued

for  240  or  more  days  with  a  view  to  give  the  benefit  of regularization  knowing  the  judicial  trend  that  those  who  have completed  240  or  more  days  are  directed  to  be  automatically regularized.  A  good  deal  of  illegal  employment  market  has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the employment are in  need  of  the  particular  jobs.  Though  already  employed elsewhere,  they  join  the  jobs  for  better  and secured  prospects. That is  why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the  surplus  labour.  The  other  equally  injurious  effect  of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts.”

(emphasis added)

23. In State of  U.P.  and others v.  U.P. State Law Officers Association and

others [(1994) 2 SCC 204], this Court examined the correctness of an order passed by

Allahabad High Court quashing the termination of the services of 26 law officers and

appointment  of  new  law  officers.   After  noticing  the  provisions  of  Legal

Remembrancer’s Manual which regulate appointment of Government counsel in the

State of U.P. and the manner in which the respondents were appointed, this Court

reversed the order of the High Court and observed:

“It would be evident from Chapter V of the said Manual that to appoint the Chief Standing Counsel, the Standing Counsel and the Government Advocate, Additional Government Advocate, Deputy Government Advocate and Assistant Government Advocate,  the State  Government  is  under  no  obligation  to  consult  even  its Advocate-General much less the Chief Justice or any of the judges of the High Court or to take into consideration, the views of any committee that “may” be constituted for the purpose. The State Government  has  a  discretion.  It  may or  may not  ascertain  the views of any of them while making the said appointments. Even where it chooses to consult them, their views are not binding on it. The  appointments  may,  therefore,  be  made  on  considerations

other  than merit  and there  exists  no provision  to  prevent  such appointments.  The  method  of  appointment  is  indeed  not calculated  to  ensure  that  the  meritorious  alone  will  always  be appointed  or  that  the  appointments  made  will  not  be  on considerations other than merit. In the absence of guidelines, the appointments  may  be  made  purely  on  personal  or  political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. This is more so when the order of appointment itself stipulates that the appointment  is  terminable  at  any  time  without  assigning  any reason. Such appointments are made, accepted and understood by both sides to be purely professional engagements till they last. The fact that they are made by public bodies cannot vest them with additional  sanctity.  Every appointment made to a public  office, howsoever  made,  is  not  necessarily  vested  with  public  sanctity. There  is,  therefore,  no  public  interest  involved  in  saving  all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.”

[emphasis added]

24. Notwithstanding  the  critical  observations  made  in  Delhi  Development

Horticulture Employees Union vs. Delhi Administration, Delhi and others (supra) and

State of U.P. and others v. U.P. State Law Officers Association and others (supra),

illegal employment market continued to grow in the country and those entrusted with

the power of making appointment and those who could pull strings in the corridors of

power  manipulated  the  system to  ensure  that  their  favourites  get  employment  in

complete and contemptuous disregard of the equality clause enshrined in Article 16 of

the  Constitution  and  Section  4  of  the  1959  Act.   However,  the  Courts  gradually

realized that unwarranted sympathy shown to the progenies of spoil system has eaten

into the vitals of service structure of the State and public bodies and this is the reason

why relief of reinstatement and/or regularization of service has been denied to illegal

appointees/backdoor  entrants  in  large  number  of  cases  –  Director,  Institute  of

Management Development, U.P. v. Pushpa Srivastava [(1992) 4 SCC 33],  Dr. M.A.

Haque and others v. Union of India and others [(1993) 2 SCC 213], J & K Public

Service Commission and others v. Dr. Narinder Mohan and others [(1994) 2 SCC

630], Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and others [1994 Suppl.

(3) SCC 380], Union of India and others v. Kishan Gopal Vyas [(1996) 7 SCC 134],

Union of India v. Moti Lal [(1996) 7 SCC 481], Hindustan Shipyard Ltd. and others v.

Dr. P. Sambasiva Rao and others [(1996) 7 SCC 499], State of H.P. v. Suresh Kumar

Verma and another [(1996) 7 SCC 562], Dr. Surinder Singh Jamwal and another v.

State of J&K and others [(1996) 9 SCC 619], E. Ramakrishnan and others v. State of

Kerala and others [(1996) 10 SCC 565], Union of India and others vs. Bishambar Dutt

[1996 (11) SCC 341], Union of India and others v. Mahender Singh and others [1997

(1) SCC 245], P. Ravindran and others v. Union Territory of Pondicherry and others

[1997 (1) SCC 350], Ashwani Kumar and others v. State of Bihar and others [1997 (2)

SCC 1], Santosh Kumar Verma and others v. State of Bihar and others [(1997) 2 SCC

713], State of U.P. and others vs. Ajay Kumar [(1997) 4 SCC 88], Patna University

and  another  v.  Dr.  Amita  Tiwari  [(1997)  7  SCC  198]  and  Madhyamik  Shiksha

Parishad, U.P. v. Anil Kumar Mishra and others [(2005) 5 SCC 122].

25. In A. Umarani v. Registrar, Coop. Societies and others [(2004) 7 SCC 112],

a three-Judge Bench held that when appointments were made in contravention of

mandatory  provisions  of  the  Act  and  statutory  rules  framed  thereunder  and  by

ignoring essential  qualifications,  the appointments  would  be illegal  and cannot  be

regularised by the State and that the State cannot invoke its power under Article 162

of  the  Constitution  to  regularise  such appointments.  The  Court  further  held  that

regularisation is not and cannot be a mode of recruitment by any State within the

meaning of Article 12 of the Constitution or any body or authority governed by a

statutory Act or the rules framed thereunder and the fact that some persons had been

working  for  a  long  time  would  not  mean  that  they  had  acquired  a  right  for

regularisation.

26.  In  Secretary,  State  of  Karnataka  vs.  Uma Devi  [2006  (4)  SCC  1],  the

Constitution Bench considered different facets of the issue relating to regularization

of services of ad hoc/temporary/daily wage employees and unequivocally ruled that

such appointees are not entitled to claim regularization of service as of right.  After

taking cognizance of large scale irregularities committed in appointment at the lower

rungs of the services and noticing several earlier decisions, the Constitution Bench

observed:

“The Union,  the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of  the  service,  without  reference to the duty  to ensure a proper  appointment  procedure  through  the  Public  Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons  who  get  employed,  without  the  following  of  a  regular procedure  or  even  through  the  backdoor  or  on  daily  wages, approaching  the  courts,  seeking  directions  to  make  them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called “litigious employment”,  has  risen  like  a  phoenix  seriously  impairing  the constitutional  scheme.  Such  orders  are  passed  apparently  in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of  social  justice  and  equal  opportunity  for  all,  subject  to affirmative  action  in  the  matter  of  public  employment  as recognised by our Constitution, has to be seriously pondered over. It  is  time that  the courts  desist  from issuing  orders  preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing  of  orders  for  continuance  tends  to  defeat  the  very constitutional  scheme  of  public  employment.  It  has  to  be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 of the Constitution are not intended to be used for the purpose of perpetuating  illegalities,  irregularities  or  improprieties  or  for scuttling the whole scheme of public employment. Its role as the

sentinel and as the guardian of equal rights protection should not be forgotten.”   

“This Court has also on occasions issued directions which could not  be  said  to  be  consistent  with  the  constitutional  scheme  of public employment. Such directions are issued presumably on the basis  of  equitable  considerations  or  individualisation  of  justice. The question arises, equity to whom?  Equity for the handful of people who have approached the court with a claim, or equity for the  teeming  millions  of  this  country  seeking  employment  and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of  law or justice, is to adhere to the law as laid down by the Constitution and not to make directions,  which at times,  even if  do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.”

While repelling the argument based on equity, the Constitution Bench observed:

“…..But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the State Governments do not have the right  to  engage persons  in  various  capacities  for  a  duration  or until the work in a particular project is completed. Once this right of  the  Government  is  recognised  and  the  mandate  of  the constitutional  requirement  for  public  employment  is  respected, there cannot be much difficulty in coming to the conclusion that it is  ordinarily  not  proper  for  the  Courts  whether  acting  under Article  226  of  the  Constitution  or  under  Article  32  of  the Constitution,  to  direct  absorption in  permanent  employment  of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.

What is sought to be pitted against this approach, is the so-called equity  arising  out  of  giving  of  temporary  employment  or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of the courts  to  ignore,  encourage  or  approve  appointments  made  or engagements  given  outside  the  constitutional  scheme.  In  effect, orders  based  on  such  sentiments  or  approach  would  result  in perpetuating  illegalities  and  in  the  jettisoning  of  the  scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity  to  compete  for  public  employment.  We  have,

therefore, to consider the question objectively and based on the constitutional and statutory provisions.”

[emphasis added]

The Constitution Bench then considered whether in exercise of power under Article

226  of  the  Constitution,  the  High  Court  could  entertain  claim for  regularization

and/or  continuance  in  service  made  by  those  appointed  without  following  the

procedure  prescribed  in  the  rules  or  who  are  beneficiaries  of  illegal  employment

market and held:

“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  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.

It  is  contended  that  the  State  action  in  not  regularising  the employees was not fair within the framework of the rule of law. The  rule  of  law  compels  the  State  to  make  appointments  as envisaged  by  the  Constitution  and  in  the  manner  we  have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about  by  the  pendency  of  proceedings  in  tribunals  and  courts initiated at the instance of the employees. Moreover, accepting an argument  of  this  nature  would  mean  that  the  State  would  be permitted  to  perpetuate  an  illegality  in  the  matter  of  public employment and that would be a negation of the constitutional scheme adopted  by us,  the  people  of  India.  It  is  therefore  not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right  to  be  enforced.  Considered  in  the  light  of  the  very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.

The argument that the right to life protected by Article 21 of the Constitution would include the right to employment cannot also be  accepted  at  this  juncture.  The  law  is  dynamic  and  our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other  aspirants  of  an  opportunity  to  compete  for  the  post  or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the backdoor. The obligation cast on the State under Article 39(a) of the Constitution is  to ensure that  all  citizens equally  have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognise that an appointment to a post in government service or in the service of its instrumentalities, can only be by way  of  a  proper  selection  in  the  manner  recognised  by  the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualising justice, it is also not

possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The directive principles of State policy have also to be reconciled with the  rights  available  to  the  citizen  under  Part  III  of  the Constitution and the obligation of the State to one and all and not to  a  particular  group  of  citizens.  We,  therefore,  overrule  the argument based on Article 21 of the Constitution.”

27. In the light of above, we shall now consider whether the High Court was

justified in directing reinstatement of the respondents  with consequential  benefits.

In the writ petition filed by them, the respondents herein made a bald assertion that

they  were  appointed  by  the  competent  authority  after  following  the  prescribed

procedure and pleaded that their services could not have been terminated in the garb

of implementing the policy contained in letter dated 16.4.1996 overlooking the fact

that they had been appointed prior to the cut off date, i.e., 28.10.1991 and the fact

that they had continuously worked for almost 10 years.  On behalf of the appellants

herein,  it was submitted that the writ  petitioners should not be granted any relief

because  their  initial  appointments  were  per  se illegal  inasmuch  as  the  concerned

Regional Director had neither advertised the posts nor any requisition was sent to the

employment exchange and there was  no consideration of  the competing claims of

eligible persons.   

28. In view of the contradictory assertions made by the parties on the issue of

legality  of  the  respondents’  initial  appointment,  the  minimum which  the  learned

Single Judge should have done was to call upon the respondents to produce copies of

the advertisement issued by the competent authority and/or requisition sent to the

employment exchange and letters of interview, if any, issued to them to prove that

they were appointed by following a fair procedure and after considering the claims of

all eligible persons.  However, without making any endeavour to find out whether the

appointments  of  the  respondents  were  made  after  following  some  procedure

consistent  with  the  doctrine  of  equality,  the  learned  Single  Judge  quashed  the

termination of their services simply by relying upon the order passed in another case

and by observing that the writ petitioners (respondents herein) had been appointed

before the cut off date i.e. 28.10.1991 specified in letter dated 16.4.1996 and they had

worked for almost 10 years.

29. In the Letters Patent Appeal filed by them, the appellants reiterated that

the respondents had been appointed without following any procedure and without

any selection.  They also contended that even though vacant posts were not available,

the then Regional Director, Gaya made large number of illegal appointments and this

fact was established in the enquiry got conducted by the department.  However, the

Division Bench did not deal with the issues raised in the appeal and dismissed the

same by making reference to the orders passed in LPA No.325/2000, Civil  Review

No.279/2000 and LPA No.47/2005 and observing that taking different view in the case

of the respondents could lead to an anomalous position inasmuch as some persons

would get back into service on the strength of the court’s order while others will be

thrown out.   

30. At  the  hearing  of  this  appeal,  we  asked  the  learned  senior  counsel

appearing for the respondents to show that before appointing his clients on ad hoc

basis,  the  then  Regional  Director,  Gaya  had  issued  an  advertisement  and/or  sent

requisition  to  the  employment  exchange  and  made  selection  after  considering

competing claims of the eligible candidates but he could not draw our attention to any

document from which it could be inferred that the respondents were appointed after

advertising the posts or by adopting some other method which could enable other

eligible persons to at least apply for being considered for appointment. He, however,

submitted that issue relating to legality of the initial appointments of the respondents

has become purely academic and this Court need not go into the same because their

services had been regularised by the competent authority in 1992.   

31. In our opinion, there is no merit in the submission of the learned senior

counsel.  If the initial appointments of the respondents are found to be illegal per se,

the  direction  given  by  the  High  Court  for  their  reinstatement  with  consequential

benefits  cannot  be  approved by relying  upon the  so-called  regularization of  their

services.   Had  the  respondents  been  appointed  by  the  competent  authority  after

issuing an advertisement or sending requisition to the employment exchange so as to

enable  the  latter  to  sponsor  the  names  of  eligible  persons  then  they  would  have

certainly produced the relevant documents before the High Court or at least before

this Court.  However, the fact of the matter is that none of the documents which could

give a semblance of legitimacy to the appointments of the respondents was produced

before the High Court and none has been produced before this Court. The report of

enquiry held against Dr. Darogi Razak, the then Regional Director, Gaya (a copy of

the report has been placed before this  Court in the form of additional  document)

bears ample testimony of manipulations made by the officer in making appointment

on Class III and Class IV posts.  So much so, with a view to remove every trace of the

illegality  committed  by  him,  Dr.  Darogi  Razak  ensured  disappearance  of  all  the

papers  relating  to appointment  from his  office.   A reading  of  the enquiry  report

shows that in all the following five charges were leveled against Dr. Darogi Razak:

“Charge No.1: You while working as Regional Director, Animal Husbandry, Gaya had made irregular appointments of 61 persons on 23 Class-3 posts and 61 Class-4 posts.  As such, the State Funds were misused/wasted on salary, allowances, etc. of the personnel appointed irregularly.

Charge No.2:  You while  working  as  Regional  Director,  Animal Husbandry, Gaya, made appointments on Sate Level posts (such as  Milk  Recorder  (Dugadh  Abhilekhak),  Poultry  Attendant (Kukkoot  Sahayak),  Statistics  Teller  (Sankhiyaki  Ganak), Progress  Assistant  (Pragati  Sahayak,  etc.)  whereas  Regional Directors had no power to  make such appointments.  Director, Animal  Husbandy  is  only  competent  to  make  appointments  to such posts.

Charge No.3: You adopted the practice of appointment of four or less than four persons at one go for which it is not necessary to give  advertisement  in  the  newspapers,  but  as  per  Roster, requisition  to  call  for  names  from  Employment  Exchange  is mandatory.  However, you have not complied with this rule.

Charge No.4: You also appointed persons in excess of sanctioned strength.

Charge No.5: The relevant  records regarding appointments are not available in the office.  In this connection, this fact has come to notice  that  these  records  have  been removed/misplaced at  your level.”

The Officer who conducted the enquiry considered the documents produced by the

departmental representative and the charged officer, arguments advanced by them,

analyzed  the  entire  evidence  and  concluded  that  charge  No.  1  is  partly  proved,

charges No. 2 and 3 are fully proved, charge No. 4 is not proved and charge No. 5 is

partly proved.  The analysis of charges No. 1 to 3 and charge No. 5 made by the

Inquiry Officer is worth noticing.  The same reads as under:

“Charges No. 1 to 3:- In  the  analyses  of  three  charges  under consideration, firstly it was seen that how much proof has been made available by the department regarding appointments made by  the  charged  officer.   As  has  been  shown  in  detail  under heading ‘evidence’  hereinabove,  number  of  appointment  letters issued by the charged officers comes near around 54 and it may vary by two three less or more.  Practical problems were faced in working out exact number of appointment letters because many appointment letters were not readable to such extent that no clear conclusion could be arrived at as to whether this is second copy of some other appointment letter or it contain any other order.

These  appointment  letters  were  casually  perused.   Some important  facts  emerged  from  such  perusal.   The  details  of appointment letters issued with No.M.Camp were found as under: -

S.  No.

Letter No. Date Name of  person  appointed

Category

1. 14/M. Camp,  Nabada

9.5.89 Raj Kumar  Rajak

Class-4

2. 12/M. Camp,  Nabada

9.5.89 Ashok Kumar  Rajak

Class-4

3. 15/M. Camp,  Nabada

9.5.89 Illeg. Class-4

4. 21/M. Camp,  Nabada

3.5.90 Sunil Prasad Class-4

5. 16/M. Camp,  Nabada

19.3.90 Kailash Rajak Class-4

6. 95/Camp,  Jahanabad

26.5.90 Onkar Kumar  Singh

Class-4

7. 266/Camp,  Aurangabad

17.2.90 Arun Kumar  Singh

Class-4

The  following  appointment  letters  have  been  issued  with  Issue No.“Con.”,  which  is  normally  used  for  confidential correspondence, and use of the same in normal course in the office is not desired in the interest of work.  Using such issue No. for appointment letter has practically no justification.

1 2 3 4 5 1. 3/Con. 30.4.91 Raj Kishore GuptaClass-4 2. 5/Con. 10.6.91 Madhuri Ram Class-4 3. 26/Con. 27.10.91 Shyam Pyare SinghClass-4 4. 25/Con. 27.10.91 Upender Kumar Singh  

Prasannjeet Kumar Singh Class-4

5. 22/Con. 27.10.91 Sanjay Kumar SinghClass-4 6. 16/Con. 25.10.91 Satrughan Sah

Sahender Prasad Singh

Class-4

7. 15/Con. 24.10.91 Ramji Ravi Das Anil Kumar Singh

Class-4

8. 6/Con. 2.7.91 Raj Kishore SinghClass-4 9. 8/Con. 19.12.90 Ram Pyare SinghClass-4 10. 7/Con. 10.12.90 Ram Bachan Singh

Pawan Kumar Class-4

11. 11/Con. 1.2.89 Ganesh Rajak Class-3 12. 13/Con. 2.2.89 Ajay Prakash Diwakar- - Appointment  letter not  made available  but  this appointment  has  been  referred  to  in  a  letter No.28/Con.  Dated  illeg.  August,  89  issued  by charged officer.

13. 3/Con. 12.2.92 Vinah Sharma Class-3 14. 18/Con. 26.10.91 Virender Kumar Singh

Pawan Kumar Class-4

15. 8/Con. 25.10.91 Bodh Narain SinghClass-4 16. 8/Con. 11.10.88 Narain Tiwari Class-4 17. 14/Con. 7.4.89 Uma Shankar SharmaClass-4 18. 2/Con. 30.4.91 Leela Kumari Class-3 19. 10/Con. 23.10.91 Vijender MandalClass-3 20. 5/Con. 9.11.90 Ajay Kumar Class-4 21. 11/Con. 23.10.91 Lakhan Lal MandalClass-3 22. 2/Con. 23.01.92 Pawan Kumar Class-3 23. 9/Con. 2.11.88 Brij Kishore SinghClass-3 24. 20/Con. 31.5.89 Ravinder SharmaClass-4

Following appointment letters were found which have been issued putting both i.e. “Con.” And “Camp”:-

1 2 3 4 5 1. 7/Con./Camp-

Sadar, Gaya 21.8.90 Raghvendra Narain

Vijay Kumar

Class-4

Class-4

2. 3/Con./Camp- Sadar, Gaya

3.1.90 Pandey  Amar Kumar

Class-4

3. 6/Con./Camp- Sadar,Gaya

3.8.90 Mithlesh Kumar Suman

Ashok Kumar Abhay

Class-4

Class-4 4. 8/Con./Camp-

Sadar, Gaya 2.9.90 Mahender Kumar Yadav

Pankaj Kumar Class-4

Class-4

In the following appointment letters, there does not appear any relation between Issue Nos. and Date, for example, Issue No. like 1,2,3 have been put in ninth and tenth month of the year:-

1 2 3 4 5 1. 1 18.9.91 Anand

Mohan Singh Class-4

2. 2 18.9.91 Gaya Prasad Class-4 3. 3 22.10.91 Sudama

Singh  Class-4

The specific feature of all the above seven appointment letters is that in all these the charged officer has this or that way ordered to one Clerk of Sadar, Gaya named Shri Avadesh Prasad that issue these  from  the  Confidential  Issue  Register  of  Sub  Divisional Animal  Husbandry  Officer,  Sadar,  Gaya.   There  is  strong possibility arises from this that naturally no one was interested to issue such letters otherwise such a senior officer would have not faced such a situation of giving such written order to a clerk only for issue of letters.

The importance of above letters is more clear on perusal of some of the remaining letters because as an exception, some letters have also been issued with Nos. as given below:-

1 2 3 4 5 1. 423 Illeg. 1. Illeg.

2. Illeg. Class-3 Class-3

2. 978 4.7.91 Girija Yadav Class-3 3. 913 Illeg. Jan Vikas Kumar

Chaudhary Class-3

4. 1616 15.11.91 Mahender Prasad Singh

Class-4

5. 1467 9.10.91 Upender  Narain Singh

Class-4

6. 1432 1.10.91 Sunil Kumar Bharat  Kumar Singh

Class-4

Class-4 7. 221 28.6.89 Munender

Kumar Bharti Class-4

8. 1365 11.9.91 Megh Nath Sah Class-4

It remains a matter of surprise that when some letters could be shown  to  have  been  issued  from  office  in  a  normal  routine manner, then what is the need of issuing other appointment letters in huge numbers by sometime putting “Confidential”,  sometime putting  “Mukhya  (Hq.)”  and  sometime  putting  “Camp”  and sometime by both “Camp” and “Confidential” contradictory and un-matched Nos. No satisfactory reply to this is found anywhere during the course of hearing.

In some cases, it also appears to be very unnatural that charged officer was Regional Director and his headquarter was also Gaya but showing office of Animal Husbandry Officer of Sadar Sub. Division,  Gaya  as  “Camp”,  letters  were  got  issued  from there. Any  need  of  getting  issued  letters  using  “Camp”  is  not understandable.  When the office of charged officer was itself in Gaya, and when any letter whatsoever was to be got issued, there would have been no difficulty for him to get it issued from his own office itself.  Merely for the reason that he is not sitting in Officer chamber and in fact  is  present in  the officer of  Sub Divisional Animal  Husbandry  Officer,  justification  of  issue  of  letter  from camp is difficult to understand.

Regarding letters issued from “Camp”, this is also another issue for consideration that such letters are normally issued under such circumstances  wherein  it  is  necessary  to  issue  the  letter immediately.  Any such emergent situation could not have been in appointment  like  matters.  There  is  no  reason  to  think  that  if charged officer had got the appointment letter issued even after returning to his office, the work would have suffered immensely. Nature  of  letters  is  not  such  that  the  subject  matter  could  be considered to be fit for issue from “camp”.

It can also be easily understood with regard to letters issued by putting  different  Issue  Nos.  that  for  some reasons  the  charged officer had considered it  not  proper to allow those letters  pass through many hands in the office, hence separate Serial No. used for getting those issued.  Even on seeing the available Nos. it is clear that no other particular correspondence used to be done by using  this  “Con.”  Issue  Register  from  which  only  these appointment letters have been issued, because Issue Nos. are of very less units/digits.  In very few instances/examples, the No. has come  in  double  digit.   A  question  mark  arises  on  Year-wise maintenance of such Register – which is natural.

Now this question also arises that had charged officer had taken all the actions as per rules, then why such situation cropped up that unnatural Issue Nos. had to be put on the appointment letters which are generally used for keeping those letters out of the sight of office.  Charged Officer even otherwise has been merely giving his statement regarding following procedure of appointment that he  had  done  such  and  such.   During  the  course  of  following procedure,  many  records  and  correspondence/files  are created/originated  such as  calling  for  information  of  vacancies, taking decision on the requirement for appointments, preparing reservation  roster  and  maintenance  of  the  same in  the  Roster Register,  classification  of  available  appointments  as per Roster, notifying  the  vacancies  to  the  employment  exchange  or newspapers,  inviting  applications,  following  procedure  for registration of applications, thereafter examination of applications as  per  qualifications,  holding  meetings  of  Selection  Committee, issue of minutes and issue of appointment letters after completion of  work.   All  these  documents  going  missing  appear  to  be impossible.  By merely saying that he followed procedure does not become clear proof that he had done so.  In fact, contrary position appears  to  be  more  reliable  from  the  statements  given  by  his successors and officials of his office.  There are sufficient grounds to hold that the charged officer has not followed the procedure in appointment.

Charge No. (5): - Here position is not such in which any file related  to  appointment  was  ever  seen  by  anyone.   No one  has made such admission in his statement.  The appointment letters issued by the charged officer himself do not bear any File No.  It is correct for the charged officer to state that it is the duty of the office and concerned clerk to maintain File Record Register etc. If charged officer take shelter of this technical argument, then he shall also be bound to take this responsibility that he should have seen  that  other  files  submitted  to  him  with  other  documents related to appointment bear file No. and that at the time of issuing fair copy of letters, File Nos. are mentioned on the letters issued from that file.  Normally, an officer who depends and rely on such defence is also supposed to take much more care and vigil.

During the course of analyses under charge No.1 to 3, many such letters have been referred in which some unnatural type of Issue Nos. have been given.  There are number of such letters on which Issue  No.  “Con.”  has  been  given.   The  charged  officer  cannot naturally put liability on his office for whatever file maintained for issue of such letters.  This question is altogether different that why letters were got issued by putting Issue No. “Con.” treating the subject like appointment as confidential.

The argument of charged officer in defence also does not clear this fact  that  why  many  appointment  letters  had  been  issued  with Issue  Nos.“Camp”.   As  charged  officer  states  –  Files  were maintained  and  office  is  responsible  for  safe  “custody”  of  the same,  then  it  is  difficult  to  understand  this  fact  that  how  the letters issued with No.“Camp” had come in the files maintained by the office.  If came, then how office can be responsible for this. “Camp” are also of different types.  “Camp” order has been got issued  from  Gaya  itself  by  sitting  from  Sadar  Sub  Divisional Office and for this purpose some clerk has also been given written order.  Such papers do not have any concern with maintenance of file.  Some “Camp” orders have also been issued from Nabada- Aurangabad and other places also.  Which file could be submitted before him at those places on which letter had been issued from Nabada or Aurangabad itself and responsibility of the same was of  the  office of  Regional  Director,  Gaya – it  is  also difficult  to understand.

As such,  the explanation of  charged officer is totally one sided. The matter is not confined to Issue No. only.  When the charged officer in his defence claim of completing all the formalities, then all  such  actions  such  as  assessing  the  vacancies,  calling  names from employment exchange or giving advertisement, making list of  candidates,  following selection process for  the same, holding meeting  of  committee  and  preparing  minutes  and  getting  it approved are required to be taken.  It is also difficult to accept that  all  such  documents  had  gone  missing  at  the  same  time. Merely  by  saying  that  safe  custody  of  records  was  the responsibility  of  the  office  is  neither  complete  in  itself but credibility of this statement also suffers in view of nature of letters issued.

Now question arises is that whether charged officer had removed the files/records of appointments made during his tenure or had taken away by him or somehow destroyed these records.  All these three  possibilities  arise  only  when  such  records  had  been maintained.  The type of appointment letters shown from which the fourth possibility  also arises that no record has at all  been maintained anywhere.  As such, there is also no need to remove or take  away  any  document.   It  is  merely  a  possibility  for  which charged officer would have needed cooperation and participation of  other  persons  to  whom  employees  were  being  sent  after

appointment.

It is not possible to finally decide from the evidences produced in this  departmental  inquiry  that  out  of  above  three  or  fourth possibilities, which one is correct.  One thing is though clear that charged  officer  had  not  left  any  of  the  papers  related  to appointment in his office and the manner in which he adopted the working system of appointments, this strong possibility arises that even if documents were maintained, these were not maintained at office level.  In such a case, the charged officer shall himself be responsible  for  non-availability  of  documents,  irrespective  of following  the  method  of  removing  those  documents  or  not maintaining any documents.  As such, this charge is held to be proved to this extent.”

[emphasis added]

32. The so-called regularization of the services of the respondents on which

heavy reliance was placed by the learned senior counsel appearing on their behalf in

the  context  of  averments  contained  in  paragraph  4  of  the  counter  affidavit  filed

before this Court by Shri  Prasannjeet Kumar Singh (respondent no.3 herein) is a

proof of nepotism practiced by the officer and deserves to be ignored.  For the reasons

best known to them, the respondents have not produced copy of the order by which

their  services  were regularised.   Perhaps  none exists.  The statement furnished  by

counsel for the appellant, which is accompanied by documents marked ‘A’ and ‘B’,

shows that in less than 7 months of the respondents appointment (except respondent

no.1 who is said to have been appointed with effect from 9.10.1991), Dr. Darogi Razak

is  said  to  have  written  confidential  memorandum  bearing  no.20  dated  11.5.1992

(Annexure ‘A’) to District Animal Husbandry Officer, Aurongabad, Gaya that ad hoc

appointments  made  vide   Memorandum  No.1467  dated  9.10.1991  are  being

regularized  temporarily  by  the  local  appointments  committee  constituted  on

11.5.1992.  What is most amazing to notice is that the local appointments committee

was constituted on 11.5.1992, the committee met on the same day and regularised the

ad hoc appointments and on that very day the Regional Director sent confidential

letter to his subordinate, i.e., the District Animal Husbandry Officer informing him

about the regularization of ad hoc appointments.  No rule or policy has been brought

to  our  notice  which  empowers  the  appointing  authority  to  regularize  ad  hoc

appointments within a period of less than 7 months.  Therefore, we have no hesitation

to  hold  that  the  exercise  undertaken  by  Dr.  Darogi  Razak  for  showing  that

appointments  of  the  respondents  were  regularized  by  the  local  appointments

committee on 11.5.1992 was a farce.

33. In view of the above discussion, we hold that the initial appointments of

the respondents were made in gross violation of the doctrine of equality enshrined in

Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge

gravely erred by directing their reinstatement with consequential benefits.

34. The issue which remains to be considered is whether the Division Bench of

the High Court was justified in refusing to examine legality and legitimacy of the

initial appointments of the respondents only on the ground that the State had not

challenged the dismissal of Letters Patent Appeals filed in other cases.  In our view,

the approach adopted by the Division Bench was clearly erroneous.   By now it is

settled that the guarantee of equality before law enshrined in Article 14 is a positive

concept and it cannot be enforced by a citizen or court in a negative manner.  If an

illegality or irregularity has been committed in favour of any individual or a group of

individuals  or a wrong order has  been passed by a judicial  forum, others cannot

invoke the jurisdiction of the higher or superior Court for repeating or multiplying

the  same   irregularity  or  illegality  or  for  passing  wrong  order  –  Chandigarh

Administration  and  another  v.  Jagjit  Singh  and  another  [(1995)  1  SCC  745],

Secretary,  Jaipur  Development  Authority,  Jaipur  v.  Daulat  Mal  Jain  and  others

[(1997) 1 SCC 35], Union of India [Railway Board] and others v. J.V. Subhaiah and

others  [(1996)  2  SCC 258],  Gursharan  Singh v.  New Delhi  Municipal  Committee

[(1996)  2  SCC 459],  State  of  Haryana  v.  Ram Kumar Mann [(1997)  1  SCC 35],

Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752],

Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89]

and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC

94], Union of India and another v. International Trading Co. and another [(2003) 5

SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and

others [(2007) 4 SCC 737] .

35. The facts of Jagjit Singh’s case were that the respondents who had given

the highest bid for 338 square yards plot in Sector 31A, Chandigarh defaulted in

paying the price in accordance with the terms and conditions of allotment.   After

giving him opportunity of showing cause, the Estate Officer cancelled the lease of the

plot.   The  appeal  and  the  revision  filed  by  him  were  dismissed  by  the  Chief

Administrator and Chief Commissioner,  Chandigarh respectively.   Thereafter,  the

respondent  applied for refund of  the amount deposited  by him.  His  request  was

accepted and the entire amount paid by him was refunded.  He then filed a petition

for  review of  the  order passed by the Chief  Commissioner,  which was dismissed.

However, the officer concerned entertained the second review and directed that the

plot be restored to the respondent.  The latter did not avail benefit of this unusual

order  and  started litigation  by  filing  writ  petition  in  the  High  Court,  which  was

dismissed  on  March  18,  1991.   Thereafter,  the  respondent  again  approached  the

Estate Officer with the request to settle his case in accordance with the policy of the

Government to restore the plots to the defaulters by charging forfeiture amount of

5%.  His  request was  rejected by the  Estate Officer.   He then filed  another writ

petition before the High Court which was allowed only on the ground that in another

case pertaining to Smt. Prakash Rani, Administrator had restored the plot even after

her writ petition was dismissed by the High Court.  While reversing the order of the

High Court, this Court observed:

“Generally speaking, the mere fact that the respondent Authority has  passed  a  particular  order  in  the  case  of  another  person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances  of  his  case,  it  is  obvious  that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent Authority to repeat the illegality or  to  pass  another  unwarranted  order.  The  extraordinary  and discretionary power of  the High Court  cannot be exercised  for such  a  purpose.  Merely  because  the  respondent  Authority  has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law—indeed, wherever it is possible, the court  should  direct  the  appropriate  authority  to  correct  such wrong orders in accordance with law—but even if  it  cannot be corrected, it is difficult to see how it can be made a basis for its repetition.  By  refusing  to  direct  the  respondent  Authority  to repeat the illegality, the court is not condoning the earlier illegal act/order  nor  can  such  illegal  order  constitute  the  basis  for  a legitimate complaint of discrimination. Giving effect to such pleas would  be  prejudicial  to  the  interests  of  law  and  will  do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful  and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners’  case is  similar to the other persons’ case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is present before the court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion, such a course—barring  exceptional  situations—would  neither  be advisable nor desirable. In other words,  the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles.”

In Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain (supra) this

Court held:

“The illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a  legal  premise  to  ensure  it  to  the  respondent  or  to  repeat  or perpetuate such illegal order, nor could it be legalized.  In other words,  judicial  process  cannot  be  abused  to  perpetuate  the illegalities.  Article 14 proceeds on the premise that a citizen has legal  and  valid  right  enforceable  at  law  and  persons  having similar  right  and  persons  similarly  circumstanced,  cannot  be denied  of  the  benefit  thereof.   Such  person  cannot  be discriminated to deny the same benefit.  The rational relationship and legal back-up are the foundations to invoke the doctrine of equality  in  case  of  persons  similarly  situated.   If  some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead, nor the Court can countenance that benefit had from infraction of law and must be allowed to be retained.   One  illegality  cannot  be  compounded  by  permitting similar illegal or illegitimate or ultra vires acts.”

In Union of India [Railway Board] and others v. J.V. Subhaiah and others (supra), a

three-Judge Bench held as under:

“The  principle  of  equality  enshrined  under  Article  14  of  the Constitution,  as  contended for  the  respondents,  does  not  apply since we have already held that the order of the CAT, Madras Bench is clearly unsustainable in law and illegal which can never form  basis  to  hold  that  the  other  employees  are  invidiously discriminated offending Article 14. The employees covered by the order of  the Madras Bench may be  dealt  with  by  the Railway Administration appropriately but that could not form foundation to plead discrimination violating Article 14 of the Constitution.”

In Gursharan Singh v. New Delhi Municipal Committee (supra), this Court declined

to  invoke  Article  14  of  the  Constitution  for  giving  relief  to  the  appellant  and

observed:

“There appears to be some confusion in respect of the scope of Article 14 of  the Constitution which guarantees equality before

law  to  all  citizens.  This  guarantee  of  equality  before  law  is  a positive concept and it cannot be enforced by a citizen or court in a negative manner.  To put it in  other words,  if  an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High  Court  or  of  this  Court,  that  the  same  irregularity  or illegality be committed by the State … so far such petitioners are concerned,  on  the  reasoning  that  they  have  been  denied  the benefits  which  have  been  extended  to  others  although  in  an irregular  or  illegal  manner.  Such  petitioners  can  question  the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders  which  are  not  sanctioned  by  law  in  their  favour  on principle  of  equality  before  law.  Neither  Article  14  of  the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court  to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal  order  for  extending  similar  benefits  to  others.  Before  a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination.”

In Faridabad CT. Scan Centre v. D.G. Health Services (supra), a three-Judge Bench

overruled the earlier decision of a two Judge Bench in Mediwell Hospital & Health

Care (P) Ltd. v. Union of India and others [(1997) 1 SCC 759] and held:

“Article 14 cannot be invoked in cases where wrong orders are issued in favour of others.  Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were  earlier  passed  in  favour  of  some other  persons  and  that, therefore,  there  will  be  discrimination  against  others  if  correct orders  are  passed  against  them.   The benefit  of  the  exemption notification, in the present case, cannot, therefore, be extended to the petitioner on the ground that such benefit has been wrongly extended to others.”

The above principles were extended to the judgment of the Court in State of Bihar v.

Kameshwar Prasad Singh (supra) wherein this Court held as under:

“The  concept  of  equality  as  envisaged  under  Article  14  of  the Constitution is a positive concept which cannot be enforced in a negative  manner.   When  any  authority  is  shown  to  have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or

irregularity on the ground of denial  thereof to them.  Similarly wrong  judgment  passed  in  favour  of  one  individual  does  not entitle others to claim similar benefits.”

[emphasis added]

In State of Haryana v. Ram Kumar Mann (supra), this Court ruled that the High

Court was not right in issuing a mandamus to the State to allow the petitioner to

withdraw his resignation merely because in another case such a course as adopted.

Some of the observations made in that case, which are quite instructive, are extracted

below:  

“The doctrine of discrimination is founded upon existence of an enforceable right.  He was discriminated and denied equality as some similarly situated persons  had been given the same relief. Article  14  would  apply  only  when  invidious  discrimination  is meted  out  to  equals  and  similarly  circumstanced  without  any rational basis or relationship in that behalf.  The respondent has no right, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation.  The High Court was  wholly  wrong  in  reaching  the  conclusion  that  there  was invidious  discrimination.   If  we  cannot  allow  a  wrong  to perpetrate,  an  employee,  after  committing  misappropriation  of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service.  Can a similarly circumstanced  person  claim  equality  under  Section  14  for reinstatement? The answer is obviously ‘No’.  In a converse case, in  the  first  instance,  one  may  be  wrong  but  the  wrong  order cannot be the foundation for claiming equality for enforcement of the same order.  As stated earlier, his right must be founded upon enforceable  right  to  entitle  him  to  the  equality  treatment  for enforcement thereof.  A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality.  Two wrongs can never make a right.”

In Union  of India  v.  International  Trading Co. (supra),  the Court reiterated that

Article 14 does not comprehend negative equality and observed:

“What remains now to be considered, is the effect of permission granted  to  the  thirty  two  vessels.   As  highlighted  by  learned counsel for the appellants, even if it is accepted that there was any improper  permission,  that  may  render  such  permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents.  It is not necessary to

deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in  another  case  direction  should  be  given  for  doing  another wrong.   It  would  not  be  setting  a  wrong  right,  but  would  be perpetuating  another  wrong.   In  such  matters  there  is  no discrimination involved.  The concept of equal treatment on the logic  of  Article  14  of  the  Constitution  of  India  (in  short  “the Constitution”) cannot be pressed into service in such cases.  What the concept of equal treatment presupposes is existence of similar legal  foothold.   It  does  not  countenance  repetition  of  a  wrong action to bring both wrongs on a par.  Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their  case.   They have to establish  strength of  their case on some other basis and not by claiming negative equality.”

In Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others (supra),

a two-Judge Bench, after making a reference to the judgments in Jagjit Singh’s case

and Gursharan Singh’s case, observed:

“When  a  grievance  of  discrimination  is  made,  the  High  Court cannot just examine whether someone similarly situated has been granted a relief or benefit and then automatically direct grant of such relief or benefit to the person aggrieved. The High Court has to first examine whether the petitioner who has approached the court has established a right, entitling him to the relief sought on the facts and circumstances  of  the case.  In  the context  of  such examination, the fact that some others, who are similarly situated, have been granted relief which the petitioner is seeking, may be of some  relevance.  But  where  in  law,  a  writ  petitioner  has  not established  a  right  or  is  not  entitled  to  relief,  the  fact  that  a similarly situated person has been illegally granted relief, is not a ground to direct similar relief to him. That would be enforcing a negative  equality  by  perpetuation  of  an  illegality  which  is impermissible in law.”

36. In view of the above stated legal position, the order passed by the Division

Bench dismissing the Letters Patent Appeal cannot be sustained.

37. In the result, the appeal is allowed, the orders of the learned Single Judge

and Division Bench are set aside and the writ  petition filed by the respondents  is

dismissed.   

......................J.       [MARKANDEY KATJU]

......................J.       [G.S. SINGHVI]

New Delhi, March 20, 2009.