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CASE NO.: Appeal (civil)  4310 of 2007

PETITIONER: State of Jharkhand and Ors

RESPONDENT: Manshu Kumbhkar

DATE OF JUDGMENT: 17/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.    4310            OF 2007 (Arising out of S.L.P. (C) No. 18890 of 2005)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.   

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Jharkhand High Court dismissing the  Letters Patent Appeal filed by the appellant-State and its  functionaries.   

3.      Background facts in a nutshell are as follows:         One Miss Suraj Mani Khalko, a few days before her  retirement made many appointments to the posts of Class III  and Class IV employees without following the procedure of  appointment stipulated by instruction dated 3.12.1980.  No  records were available in the office for such appointments,  namely, advertisement, requisition to employment exchange,  committee for preparing panel to be chaired by District  Magistrate, with District Welfare Officer and three officers of  different district levels. According to the respondent  advertisement was issued for Class III and Class IV employees  on 4.6.1993 and on 12.7.1993 interview letters were issued.   According to the appellants all these were signed by Miss  Suraj Mani Khalko and were fabricated and forged documents  and were never issued by the department which is manifest  from the dispatch register. On 16.9.1993 the appointment  letter was purportedly issued and the respondent claimed to  have joined on 21.9.1993, but he was not paid his salary.  A  few days thereafter i.e. on 15.10.1993 illegal appointments  made by Miss Suraj Mani Khalko were cancelled by the  Government.  The respondent filed a writ petition in the year  1995 before the Jharkhand High Court. The High Court  dismissed the writ petition by its order dated 28.8.1995 with  the direction to the respondent to file fresh representation with  all materials i.e. letter of appointment etc. before the authority.   Direction was also given to make payment of admitted dues  since 21.9.1993 till date. The respondent did not file any  representation as was directed by the High Court.  On the  basis of the direction given by the High Court in CWJC  No.3878/1995, Deputy Commissioner was appointed to make  an inquiry.  By report dated 10.4.1997, the Deputy  Commissioner found all the appointments to be illegal. By

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order dated 22.4.1997 the services of respondent, Sri Sanjay  Kumar and three others were terminated by the District  Education Officer. Respondent filed CWJC No.829/1998.  Several terminated employees filed writ petitions which were  dismissed by the High Court on the ground that the  appointments were violative of Articles 14 and 16 of the  Constitution of India, 1950 (in short ’the Constitution’) as they  had been made without following the requisite procedure.  Learned Single Judge allowed the writ petition filed by the  respondent on the ground that Sanjay Kumar had been  appointed pursuant to the order passed by the High Court.  The Letters Patent Appeal filed as aforesaid was dismissed.   

4.      Learned counsel for the appellants submitted that on the  basis of the norms fixed for appointment, due procedure was  not followed. Merely because somebody else had granted  appointment, that cannot be a ground to claim that wrong  should be perpetuated.  On the basis of the norms fixed by the  Department of Personnel and Administrative Reforms dated  3.12.1980, specific modalities were required to be followed.  It  is to be noted that in Sanjay Kumar’s case LPA was dismissed  on the ground of delay and, therefore, was not a precedent to  be  followed.  Reference is made to the decision of this Court in  Secretary, State of Karnataka and Ors. v. Umadevi (3) and  Ors. (2006 (4) SCC 1) to contend that the learned Single Judge  could not have passed the order for regularization.   

5.      In response, learned counsel for the respondent stated  that it is not a case of regularisation. There was an  advertisement, there was a vacancy, panel of selection was  duly constituted and, therefore, no interference is called for.   

6.      In the instant case, the norms have been fixed not by any  Rule but by administrative instructions.  As noted above,  stand of the appellant is that respondent was not sponsored  by the employment exchange.  There was no advertisement  and there was not even any properly constituted committee to  make the selection.  The stand that letter of appointment was  issued clearly gets negatived when the entries from the  dispatch register are noted. According to the respondent  interview letters were issued on 12.7.1993 and advertisement  was issued on 4.6.1993.  There is no entry in the dispatch  register for these two dates.  The details are annexed to P-9 to  the rejoinder affidavit.   

7.      It is to be noted that by order dated 4.9.1996 in CWJC  No.3878/95 the High Court noted as follows: "A revealing fact has been disclosed that  taking advantage of the orders passed by this  Court, as mentioned in Annexures-5 to 8, this  Respondent No.4 is squandering the  government money and getting the back dated  appointment letter issued from regional  Deputy Director of Education, North  Chotanagpur Division, Hazaribagh, now  retired without the knowledge of the District  Establishment Committee, whose Chairman  is Deputy Commissioner."

8.      Reliance by the High Court on the order passed in  Sanjay Kumar’s case (supra) was thoroughly misconceived.  It  is to be noted that LPA was dismissed on the ground of delay.   Even otherwise, merely because mistake had been committed  in one case, there is no rational for perpetuating that mistake,  even when the same is illegally impermissible.  It is to be

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noted that in terms of the executive instructions, the following  procedure was to be adopted:

"6.     On other category of class-4 posts the  appointments will be made through District  employment exchange as far as practicable  from local areas.  Because only one panel for  the appointment of class-4 employees will be  prepared for appointment at district level which  will be effective for one year, the district officer  will give extensive publicity to the  advertisement calling for applications and  examine the applications.  Every applicant will  quote his registration region/the district  exchange.  If due to any reason the District  employment officer does not recommend his  name then the Collector will admit his  application on the ground of registration No.  and will consider the application and the  District Magistrate will as per necessity,  examine the list as recommended by the  Employment Exchange for appointment.                                                        

7.      For recruitment to such posts a  committee will be formed to be chaired by the  District Magistrates and members of such a  committee will be district welfare officer,  district employment officers and three senior  officers of different district levels working  department as nominated by the district  magistrates and two officers from the  department of district level developmental  works.  For appointment to the class-4 posts  in every district a list of suitable candidates  will be prepared finally by the said committee  at the outset of the financial year by the  month of May and appointments through year  by the financial year would be made in all  offices from this list.  So far as the current  financial year is concerned, if a list of suitable  candidate has already been prepared in  keeping with memo No.10747 dated 20th June  in any district, then the recruitment in the  current year should be made from the list but  if there is no such list prepared in any district  according to the above memo then such a list  should be got prepared by aforesaid district  levels committee by 31st December, 1980.   District Magistrates are hereby requested that  they should sent by 15th Feb., 1981 a detailed  statement in the enclosed proforma about  appointments made in every district level  officers uptill 31st January, 1981 keeping in  view the above procedure.  The report  regarding the appointment made from the list  prepared for next financial year in accordance  with the above procedure should be sent to  the department of personnel till 15th July,  1981."

9.      In Ashwani Kumar and Ors. v. State of Bihar and Ors.  (1997 (2) SCC 1), it was noted in paras 13 and 14 as follows:

"13. So far as the question of confirmation of  these employees whose entry itself was illegal

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and void, is concerned, it is to be noted that  question of confirmation or regularisation of  an irregularly appointed candidate would  arise if the candidate concerned is appointed  in an irregular manner or on ad hoc basis  against an available vacancy which is already  sanctioned. But if the initial entry itself is  unauthorised and is not against any  sanctioned vacancy, question of regularising  the incumbent on such a non-existing  vacancy would never survive for consideration  and even if such purported regularisation or  confirmation is given it would be an exercise  in futility. It would amount to decorating a  still-born baby. Under these circumstances  there was no occasion to regularise them or to  give them valid confirmation. The so-called  exercise of confirming these employees,  therefore, remained a nullity.           xxx                     xxx                     xxx As we have seen earlier when the initial  appointments by Dr Mallick so far as these  daily-wagers were concerned, were illegal  there was no question of regularising such  employees and no right accrued to them as  they were not confirmed on available clear  vacancies under the Scheme. It passes one’s  comprehension as to how against 2500  sanctioned vacancies confirmation could have  been given to 6000 employees. The whole  exercise remained in the realm of an  unauthorised adventure. Nothing could come  out of nothing.           xxx                     xxx                     xxx Zero multiplied by zero remains zero.  Consequently no sustenance can be drawn by  the appellants from these confirmation orders  issued to them by Dr Mallick on the basis of  the directions issued by the authorities  concerned at the relevant time. It would  amount to regularisation of back-door entries  which were vitiated from the very inception.  

xxx                     xxx                     xxx Whether they are posts or vacancies they  must be backed up by budgetary provisions  so as to be included within the permissible  infrastructure of the Scheme. Any posting  which is dehors the budgetary grant and on a  non-existing vacancy would be outside the  sanctioned scheme and would remain totally  unauthorised. No right would accrue to the  incumbent of such an imaginary or shadow  vacancy.

14. In this connection it is pertinent to note  that question of regularisation in any service  including any government service may arise  in two contingencies. Firstly, if on any  available clear vacancies which are of a long  duration appointments are made on ad hoc  basis or daily-wage basis by a competent  authority and are continued from time to time

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and if it is found that the incumbents  concerned have continued to be employed for  a long period of time with or without any  artificial breaks, and their services are  otherwise required by the institution which  employs them, a time may come in the service  career of such employees who are continued  on ad hoc basis for a given substantial length  of time to regularise them so that the  employees concerned can give their best by  being assured security of tenure. But this  would require one precondition that the initial  entry of such an employee must be made  against an available sanctioned vacancy by  following the rules and regulations governing  such entry. The second type of a situation in  which the question of regularisation may arise  would be when the initial entry of the  employee against an available vacancy is  found to have suffered from some flaw in the  procedural exercise though the person  appointing is competent to effect such initial  recruitment and has otherwise followed due  procedure for such recruitment. A need may  then arise in the light of the exigency of  administrative requirement for waiving such   irregularity in the initial appointment by a  competent authority and the irregular initial  appointment may be regularised and security  of tenure may be made available to the  incumbent concerned. But even in such a  case the initial entry must not be found to be  totally illegal or in blatant disregard of all the  established rules and regulations governing  such recruitment. In any case back-door  entries for filling up such vacancies have got  to be strictly avoided. However, there would  never arise any occasion for regularising the  appointment of an employee whose initial  entry itself is tainted and is in total breach of  the requisite procedure of recruitment and  especially when there is no vacancy on which  such an initial entry of the candidate could  ever be effected. Such an entry of an employee  would remain tainted from the very beginning  and no question of regularising such an illegal  entrant would ever survive for consideration,  however competent the recruiting agency may  be. The appellants fall in this latter class of  cases. They had no case for regularisation  and whatever purported regularisation was  effected in their favour remained an exercise  in futility. The learned counsel for the  appellants, therefore, could not justifiably fall  back upon the orders of regularisation passed  in their favour by Dr Mallick. Even otherwise  for a regularising such employees well- established procedure had to be followed.  

xxx                     xxx                     xxx

Even this letter clearly indicates that the  posts had to be filled up by following the  prescribed procedure. Despite all these  communications neither the initial

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appointments nor the confirmations were  done by following the prescribed procedure.  On the contrary all efforts were made to  bypass the recruitment procedure known to  law which resulted in clear violation of  Articles 14 and 16(1) of the Constitution of  India both at the initial stage as well as at the  stage of confirmation of these illegal entrants.  The so-called regularisations and  confirmations could not be relied on as  shields to cover up initial illegal and void  actions or to perpetuate the corrupt methods  by which these 6000 initial entrants were  drafted in the Scheme by Dr Mallick. For all  these reasons, therefore, it is not possible to  agree with the contention of the learned  counsel for the appellants that in any case  the confirmations given to these employees  gave them sufficient cloak of protection  against future termination from services. On  the contrary all the cobwebs created by Dr  Mallick by bringing in this army of 6000  employees under the Scheme had got to be  cleared lock, stock and barrel so that public  confidence in Government administration  would not get shattered and arbitrary actions  would not get sanctified."

10.     This decision was noted in para 31 of Uma Devi’s case  (supra).

11.     Above being the position, the order of the learned Single  Judge, as maintained by the Division Bench cannot be  sustained.   

12.     The appeal is allowed without any order as to costs.