Vijay Kumar vs The State of Bihar and Others

S.B. Sinha & S. Hoda, JJ.—In this application the petitioner has prayed for issuance of writ for quashing of an order dated 4th December, 1991 whereby his appointment alongwith other persons, has been cancelled with immediate effect on the ground that the same was illegal. Allegedly applications were called for, for appointment of Class-III and Class IV posts on purely temporary basis. The petitioner applied for appointment in pursuance of the aforementioned advertisement. He was thereafter asked to appear before the Selection Committee. Whereafter the petitioner''s name was recommended and by an order dated 9th December, 1989 he was appointed on provisional basis in Class III in the post of Clerk in Project Girls High School, Sanjhauli in the district of Rohtas, Sasaram. The petitioner was asked to show cause by a letter dated 27th September, 1991 as to why the appointment of the petitioner by the District Education Officer should not be held to be illegal on the following grounds :�

(a) That the appointment of the petitioner was not made against the post of Clerk in terms of the guidelines of the Personnel and Administrative Reforms Department of the State of Bihar, without any advertisement in the newspaper.

(b) That such appointment was made without calling for names from the Employment Exchange, and

(c) That the appointment of the petitioner has been made not through the District Standard Sub-Committee as has been laid down by the Education Department of the State of Bihar.

The said show cause notice is contained in Annexure-4 to the writ application.

The petitioner filed a show cause alleging inter alia therein that his appointment was made after a notice was published on the notice Board and he was interviewed by a Selection Committee.

By reason of the impugned order dated 29th November, 1991, the Headmistress of the different Project Girls High School including the Project Girls High School, Sanjhauli, Rohtas were directed to stop payment of salary in respect of Class III and IV employees. The said order is contained in Annexure-6 to the writ application.

Thereafter by reason of the impugned order dated 4.12.1991 as contained in Annexre-1 to the writ application the said appointments were cancelled. The said order was passed on the following grounds as stated in Paragraph 17 of the writ petition.

(i) That by letter No. 19372 dated 27th July, 1981, for different High Schools, a Committee was constituted in which in addition to the District Education Officer, one Member must/should have been, who should have been nominated by the District Welfare Officer and the District Education Officer, but in none of the appointment, the District Welfare Officer''s nominee was made a Member.

(ii) That in terms of the Government letter No. 16441 dated 3rd December, 1980, names should have been called for from the Employment Exchange and advertisement should have been made for appointment and for Class IV appointments (to which the petitioner is not concerned) names should have been called for from the Collectorate from the District Level panel, which was not followed.

(iii) That the advertisement/notice which was published by the District Education Officer, Rohtas, does not bear Memo No. or date which bears only the signature of the Sub-Divisional Education Officer, Sasaram, North.

(iv) That in the matter of appointment, Government circulars and directions relating to reservation have not been followed.

(v) That the applications, which are available of different candidates in none of the applications it has been mentioned relating to the date of interview dated 20th September, 1988.

(vi) That the register relating to interview, in which the seriatum of the candidates have been shown and the Assistant has given his remarks, the position of candidates at the time of interview has not been mentioned, nor the District Education Officer has made comment relating to their opinion in the said Register.

(vii) That the register in which the merit list has been shown, that cannot be treated to be a reliable one as the signatures of the applicants are not there, nor their applications are available in the office.

(viii) That the show-cause reply submitted by the Clerks/Peons (a general statement) are not reliable and satisfactory.

Mr. S.J. Mukhopadhyaya, Learned Counsel appearing on behalf of the petitioner inter-alia submitted that the appointment of the petitioner cannot be cancelled only because no name was called for from the Employment Exchange or no advertisement in the local newspaper was published.

According to the Learned Counsel even if no intimation was given about any vacancy to the employment exchange, the appointment of a person does not become illegal thereby. It was also contended that in any event, as a notice was pasted on the Notice Board informing about the vacancy of the Project School, the same must be held to be a sufficient compliance of Article 16 of the Constitution of India.

It was further submitted that the grounds mentioned in the impugned order do not render the appointment illegal.

The Learned Counsel in support of this contention has placed strong reliance in Jogindra Jha vs. College Service Commission reported in 1983 (3) SLR 4 and Sardara Singh and others, etc. Vs. State of Punjab and others, .

In this case the petitioner was appointed on purely adhoc basis. The said order was passed in anticipation of the approval of the Regional Deputy Director of Education, Patna. One of the conditions of the said offer of appointment is that the services of the petitioner can be terminated without assigning any reason whatsoever.

The petitioner, therefore, has no right to continue in the said post. Further it has not been stated by the petitioner that the approval of the Regional Deputy Director of Education had been issued. It may be that in law such approval was not necessary but the very fact that the appointment of the petitioner was made on that ground goes to show that even the appointing authority was not sure that he could make appointments in such a case.

In this case, there was nopermanent vacancy. It is not the case of the petitioner that the State has given its sanction for the posts. The petitioner in such an event could not claim that he had a right to be absorbed in service.

The questions posed in these writ petitions have to be answered in the aforementioned back-drop of the facts.

It is now well known that an order of appointment made in violation of the mandatory provisions of the recruitments rules as also the provisions of Articles 16 of the Constitution of India is a nullity.

From a perusal of the impugned order as contained in Annexure-1 to the writ application, it is evident that that District Education Establishment Committee found that in terms of the circular letter dated 21.7.1991 the Selection Committee was to be constituted consisting of District Supdt. of Education, an Additional District Welfare Officer, a Headmaster nominated by the District Education Officer but in connection with the appointment in question, the nominee of the District Welfare Officer had not been made a member thereof. It has further been found that in terms of a circular letter dated 3rd September, 1988, the vacancies were required to be advertised and such advertisement should have been issued in newspapers calling for applications from the eligible candidates for filling up of the vacant posts.

The said direction of the State being in terms of Article 162 of the Constitution of India has the force of law.

It is now well known that any appointment made in violation of the mandatory provisions of the Recruitment Rules as also Article 16 of the Constitution of India, renders an appointmentanullity.

Reference in this connection may be made to Satish Kumar and Others Vs. State of Bihar, , Udai Kumar Sharma v. Registrar, Cooperative Societies, Bihar and others reported in 1989 PLJR 952; Bijendra Singh vs. State of Sikkim reported in 1990 LIC 43; Rakesh Ranjan Verma and others v. State of Bihar and others reported in 1991 (1) PLJR 398; Mahendra Ram vs. Deputy Commissioner, Palamau reported in 1989 BLT 29 and M.L. Gupta and Others Vs. Instrumentation Ltd. and Others .

In Satyanarayan Sharma and others Vs. National Mineral Development Corporation Ltd. and others, it was held as follows�

We do not find any ground to interfere with the High Court''s decision in view of the clear findings supported by evidence that there are no vacancies or work available in the establishment for absorption of the petitioners and that for quite some time they have been continued on rolls and paid inspite of there being no work for them. On these facts, the question of directing their absorption and regularisation does not arise. The principle of regularisation of a daily rated workmen and payment to him of the pay equal to that of a regular workman is doing the same work as the regular workmen and there being a vacancy available for him, he is not absorbed against it or not even paid the equal pay for the period during which the same work is taken from him, or the clear findings in this case, this is not the position. This petition must, therefore, fail.

The Supreme Court again in Ex. Capt. K. Balasubramanian and Others Vs. State of Tamil Nadu and Another, has held:

That High Court has, in our opinion, rightly held that the directions contained in orders dated November 16, 1976 and June, 15, 1977 were invalid being contrary to the provisions contained in Rule 35 of the General Rules. Since the said orders were invalid the petitioners could not claim any right on the basis of the said orders and there was therefore no question of affording them an opportunity of hearing before passing the order dated March 3, 1990.

this Court, times without number have pointed out that appointments in the State of Bihar are made either for monetary consideration or for other extraneous considerations. Flequenrly appointments are made in violation of the recruitments rules and/or guidelines given by the State from time to time. Even the reservation policies are not followed�in such cases. Taking into consideration the facts and circumstance of this case, we are of the view that the appointment of the petitioner has been made in a hush-hush manner and in violation of the Recruitment Rules as also Article 16 of the Constitution of India.

In this facts of the case the presence of the District Welfare Officer in the Committee constituted for the purpose of making district-wise appointments was mandatory. It does not He in the mouth of the petitioner that as there was only one post of clerk, the reservation policy was not required to be followed inasmuch as, it is admitted case of the petitioner that exiting vacancies of various projects schools were considered together. In fact according to the petitioner himself the question of filling up of all the posts in the project school within the jurisdiction of the District Education Officer have been taken up for consideration.

In this situation, it was necessary for the Committee to follow the reservation policy of the State.

In Union of India and another v. Tejram Parashramji Bombhate reported in AIR 1992 S.C. 570, it has been observed as follows :

There is no law requiring the Central Government to sanction the Secondary School. The Central Government had taken a decision that it will not involve itself in sanctioning or running classes beyond the primary School level. It is a policy matter involving financial burden. No court or the Tribunal could compel the Government to change its policy involving expenditure. The Tribunal, therefore, could not have, issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law.

B.P. Singh, J, in Mahender Ram v. Deputy Commissioner, Palamau and others reported in 1989 BLT 29 has held:

But where a person gains entry through the back door and continues in service and then by reason of such continuance claims regularisation, the matter has to be viewed in the light of the provisions of Articles 16 of the Constitution. If the appointment itself was void, there can be no question of regularising such an appointment. It is our judicial experience that Article 16 in this State is observed more in its breach. Appointments are made initially for a temporary period, but thereafter continued sometimes under specific order and sometimes without any order being passed. After sometime the appointee claims that by reason of his continuous officiation against a post, he should be regularised. It appears that even the authorities do not realize that regularisation does not mean permanence, since very often it has been urged before us that a person whose appointment has been regularised becomes a permanent employee under the State. Article 16 is breached with such impunity that one cannot possibly ignore the phenomenon. I, therefore, come to the conclusion that the appointment of the petitioner being in breach of Article 16 of the Constitution was an invalid appointment which did not confer any legal right on the petitioner. Since the continuance of the petitioner whose appointment was invalid was itself illegal, the impugned order where by the appointment was terminated is perfectly valid.

Where a constitutional mandate is breached, it matters little who is at fault. The action must be declared to be invalid. In cases of the nature with which I am concerned in the instant case, it may not be correct to say that the appointee is not at fault. Such appointments are not offered but are procured and I need not comment about the considerations which go into the matter.

The learned Judge again reiterated the tame view in Lalan Prasad Singh vs. State of Bihar reported in 1990 BLT 237, which decision has been upheld in a Letters Patent Appeal, by a bench of which one of us (S.B. Sinha, J) was a member.

This aspect of the matter has also been considered in M.L. Gupta''s case (Supra) where one of us after considering the large number of cases held as follows:

Right to work is not a fundamental right but a right to be considered for appointment is. Such a right to be considered for appointment, as enshrined under Article 16 of the Constitution, must be held to be available to all person who are eligible thereof. Any appointment which does not conform to the requirements of Article 16 of the Constitution therefore, cannot be said to be a valid appointment and consequently any back door method adopted to confer any permanency in the job in violation thereof cannot be encouraged by the High Court.

It is trus that ad hocism should came to an end. However, the same does not mean that the persons who have obtained employment by taking recourse to backdoor method may be permitted to be permanently absorbed only because they have put in work for some time.

this Court in the aforementioned case proceeded to observe:

In Nand Kishore Raut and Others etc. Vs. State of Bihar and Others etc., S. Ali Ahmad J., speaking for the Full Bench held that where excise constables are appointed on ad hoc basis by the Exise Superintendent who was not the competent authority therefor, when services of such persons are terminated, they cannot be held to be retrenched constables. The Full Bench distinguished the decision of the Supreme Court reported in Bhagwati Prasad Vs. Delhi State Mineral Development Corporation, .

From the decisions of the Supreme Court as also of this Court, as referred to hereinbefore, it will thus be evident that any appointment which have was made by a person having no authority to do so or the appointments which have not been made following the mandatory provisions of the Recruitments Rules and Articles 14 and 16 of the Constitution, such appointments should be held to be a nullity. In this view of the matter, in my opinion, this Court in exercise of its writ jurisdiction cannot direct regularisation of the services of the employees when the same would be violative of Articles 14 and 16 of the Constitution.

The decisions upon which reliance has been placed by Mr. Mukhopadhyaya have no application in the facts and circumstances of the case. In Yogendera Prasad''s case (Supra) writ petitioner themselves applied pursuant to an advertisement made in the notice Board but they were not found to be fit.

In that situation, this Court observed:�

That requirement of Section 4 (1) of the Employment Exchange (Compulsory Notification of Vacancies) Act, 1959 was not mandatory.

The division bench further observed:�

In appropriate cases, however, the Court on a finding of failure of justice, may strike down such an appointment.

The Division Bench proceeded to observe:�

The present case does not appear to be one in which the appointment should be set aside at the instance of the petitioner. I have already mentioned above that the notice was given on the Notice Board in the Office of the Commission where the present petitioner is working against a substantive post and present facts and circumstances, it is not possible to accept his case that he was in dark about the appointment of a driver. Initially, the proposal was to appoint a driver on daily wages and the petitioner who was already holding a permanent post was not expected to be interested in the same. Further, it is not claimed that the petitioner, who was not an unemployed person was registered with any Employment Exchange so that he could have profited by the notification in accordance with Section 4(1). On the other hand, the records disclosed that the respondent No. 4 had produced his registration number with the Employment Exchange, at the time of his interview. No other unemployed person has claimed that he would have a better chance of appointment than the respondent, if he had known about the vacancy and had applied. In the circumstances, I am of the view that the appointment of the respondent No. 4 cannot be set aside on this ground.

It is, therefore, only in that situation, the court did not find necessary to quash the appointment.

However, such is not the position here.

Similarly in Sardara Singh vs. State of Punjab reported in 1991 S.C. 2248 purusant to an advertisement for appointment from special categories viz., children affected by the riots in Delhi was invited by the District Collector; various candidates including the writ petitioners before the Punjab and Haryana High Court and the Supreme Court appeared. The selection of the successful candidates was challenged by unsuccessful candidates in several writ petition before the said High Court.

In that situation, the Supreme Court observed :�

It was next contended that instead of calling the applications by publication in the newspapers, only notice was put on the Notice Board of the Collector''s office and some candidates submitted their applications in pursuance thereof and that is not a proper notification. Though we find that the procedure adopted by the Collector, in inviting applications is not commendable, but the grievance would be voiced only by the persons who did not have the opportunity to make applications within the prescribed period. But no such grievance could be raised by persons like the appellants. Under those circumstances, the procedure, though irregular does not vitiate the selection of candidates, ultimately made by the Committee.

(Underlining is ours for emphasis)

In this case, however, action has been taken by the State. The State as an employer is not bound to recognise an appointment made by its servants ignoring the mandatory provisions of recruitment rules and/or Article 16 of the Constitution of India.

Further it is well known that issuance of a writ of certiorari is a discretionary remedy.

this Court in Pramod Kumar and ors. vs. the State of Bihar and ors reported in 1988 PLJR 931, upon consideration of various decisions held as follows :�

It is now well settled by the various decisions of this Court and the Supreme Court of India that issuance of a writ of certiorari is a discretionary remedy. In this connection reference may be made in the case of Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, ; Abdul Majid and others vs. the State Transport Appellate Authority, Bihar and other ( AIR 1960 Patna 333), Devendra Prasad Gupta vs. the State of Bihar and others (1977 BBCJ 543: 1977 PLJR 576), Hari Prasad Mandal v. Additional Collector (1978 BBCJ 575: 1978 PLJR 636); Banwari Lal Newatia vs. Under Secretary to Government of India and others (1982 BLT 311) and 1988(1) Supreme Court Cases page 40, The aforementioned decisions are authorities for the proposition that writ jurisdiction of a High Court only provides for discretionary remedy and it should not be exercised for quashing an order which might give rise to another illegal order as if substantial justice has been done to the parties.

In this connection, reference may be made to recent decision of mine in the case of Jai Bharat Co. v. Central Coal Field Ltd. reported in 1988 BLT (Rep) at page 192 wherein it was held that High Court would be justified in a given case to refuse to interfere with illegal order if it is inequitable so to do or if the same would be against public interest.

The same view has been taken in Suku Mahto and Another Vs. State of Bihar and Others .

It is therefore, a case where we should not exercise our discretion in favour of the petitioner particularly in view of the fact that the petitioner''s appointment was ad hoc in nature.

We may further observe that by reason of the impugned order, neither any disqualification nor any misdemaneour on the part of the petitioner has been found.

The impugned order has been passed only on the basis that recruitments policy has not been followed and there has been a violation of Article 16 of the Constitution of India. The State in our opinion, in a given situation, can always hold an enquiry in such matters and pass appropriate orders, in view of the fact that such illegal appointments have become rampant in the State of Bihar.

We may also observe that the enquiry has been conducted on the basis of the official records, the veracity whereof has not been questioned before us by the petitioner.

In this situation even if a writ is issued by this Court, the same would be futile as the facts have not been controverted.

It is also well known that the rule of natural justice, must not be stretched too far. Only too often, the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences (See 1976 (3) A.E.R. 796). For the reasons aforementioned, this application is dismissed, but without any order as to costs.