1

            REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    8649                 OF 2018 (Arising out of S.L.P. (Civil) No.24742 of 2012)

THE STATE OF BIHAR AND ORS. … APPELLANTS  

VERSUS

KIRTI NARAYAN PRASAD … RESPONDENT

WITH

CIVIL APPEAL NOS. 8650   OF 2018 (Arising out of S.L.P. (Civil) No.24744 of 2012)

CIVIL APPEAL NO.  8651 OF 2018 (Arising out of S.L.P. (Civil) No.11887 of 2012)

CIVIL APPEAL NO. 8652  OF 2018 (Arising out of S.L.P. (Civil) No.24743 of 2012)

CIVIL APPEAL NO. 8654 OF 2018 (Arising out of S.L.P. (Civil) No.24745 of 2012)

CIVIL APPEAL NO.  8655 OF 2018 (Arising out of S.L.P. (Civil) No.24748 of 2012)

CIVIL APPEAL NO. 8656  OF 2018 (Arising out of S.L.P. (Civil) No.155 of 2014)

CIVIL APPEAL NO.8657 OF 2018 (Arising out of S.L.P. (Civil) No.160 of 2014)

2

CIVIL APPEAL NO. 8658  OF 2018 (Arising out of S.L.P. (Civil) No.161 of 2014)

CIVIL APPEAL NO. 8659  OF 2018 (Arising out of S.L.P. (Civil) No.150 of 2014)

CIVIL APPEAL NO.8660  OF 2018 (Arising out of S.L.P. (Civil) No.162 of 2014)

CIVIL APPEAL NO.8661 OF 2018 (Arising out of S.L.P. (Civil) No.2190 of 2014)

CIVIL APPEAL NO.8662  OF 2018 (Arising out of S.L.P. (Civil) No.158 of 2014)

CIVIL APPEAL NO.8663 OF 2018 (Arising out of S.L.P. (Civil) No.159 of 2014)

CIVIL APPEAL NO.8665  OF 2018 (Arising out of S.L.P. (Civil) No.156 of 2014)

CIVIL APPEAL NO.8666  OF 2018 (Arising out of S.L.P. (Civil) No.151 of 2014)

CIVIL APPEAL NO.8668 OF 2018 (Arising out of S.L.P. (Civil) No.23837of 2014)

CIVIL APPEAL NO.8670 OF 2018 (Arising out of S.L.P. (Civil) No.30707 of 2014)

CIVIL APPEAL NO. 8673  OF 2018 (Arising out of S.L.P. (Civil) No.29496 of 2014)

CIVIL APPEAL NOS.8674- 8676 OF 2018 (Arising out of S.L.P. (Civil) Nos.29490-29492 of 2014)

CIVIL APPEAL NO.8677  OF 2018 (Arising out of S.L.P. (Civil) No.31562 of 2014)

CIVIL APPEAL NO.8678 OF 2018 (Arising out of S.L.P. (Civil) No.34248 of 2014)

CIVIL APPEAL NO.8683 OF 2018 (Arising out of S.L.P. (Civil) No.32590 of 2014)

3

CIVIL APPEAL NO.8684 OF 2018 (Arising out of S.L.P. (Civil) No.34132 of 2014)

CIVIL APPEAL NO.8687 OF 2018 (Arising out of S.L.P. (Civil) No.32645 of 2014)

CIVIL APPEAL NO.8688 OF 2018 (Arising out of S.L.P. (Civil) No.33131 of 2014)

CIVIL APPEAL NO.8689 OF 2018 (Arising out of S.L.P. (Civil) No.32673 of 2014)

CIVIL APPEAL NO. 8690 OF 2018 (Arising out of S.L.P. (Civil) No.32614 of 2014)

CIVIL APPEAL NO.8691 OF 2018 (Arising out of S.L.P. (Civil) No.33051 of 2014)

CIVIL APPEAL NO.8692  OF 2018 (Arising out of S.L.P. (Civil) No.67 of 2015)

CIVIL APPEAL NO.8693OF 2018 (Arising out of S.L.P. (Civil) No.34280 of 2014)

CIVIL APPEAL NO.8696 OF 2018 (Arising out of S.L.P. (Civil) No.36513 of 2014)

CIVIL APPEAL NO.8697 OF 2018 (Arising out of S.L.P. (Civil) No.2930 of 2015)

CIVIL APPEAL NO.8698 OF 2018 (Arising out of S.L.P. (Civil) No.2914 of 2015)

CIVIL APPEAL NO. 8699 OF 2018 (Arising out of S.L.P. (Civil) No.3352 of 2015)

CIVIL APPEAL NO.8700 OF 2018 (Arising out of S.L.P. (Civil) No.7569 of 2015)

CIVIL APPEAL NO.8701 OF 2018 (Arising out of S.L.P. (Civil) No.7564 of 2015)

4

CIVIL APPEAL NO.8702  OF 2018 (Arising out of S.L.P. (Civil) No.20582 of 2015)

CIVIL APPEAL NO.8703 OF 2018 (Arising out of S.L.P. (Civil) No.5964 of 2015)

CIVIL APPEAL NO.8704  OF 2018 (Arising out of S.L.P. (Civil) No.8229 of 2015)

CIVIL APPEAL NO.8705 OF 2018 (Arising out of S.L.P. (Civil) No.18198 of 2015)_

CIVIL APPEAL NO.8706 OF 2018 (Arising out of S.L.P. (Civil) No.24518 of 2015)

CIVIL APPEAL NO.8707 OF 2018 (Arising out of S.L.P. (Civil) No.25895 of 2015)

CIVIL APPEAL NOS.10049-10054 OF 2018 (Arising out of S.L.P. (Civil) Nos.28728-28729 of 2017)

J U D G M E N T

S.ABDUL NAZEER, J  .

1. Some of the appeals out of the aforesaid group of matters have been filed by the

State of Bihar challenging the order of the High Court of Judicature at Patna, whereby

the Division Bench has confirmed the order of the learned Single  Judge directing

reinstatement  of  the  writ  petitioners  therein  on  their  respective  posts  with  all

consequential benefits in terms of the order dated 6.10.2009 in CWJC No. 6575 of

2009 and analogous cases.  In CWJC No. 6575 of 2009 and other connected matters,

learned Single Judge while allowing writ petitions has directed reinstatement of the

5

writ  petitioners  therein  from the  date  of  their  termination  on  the  post,  they  were

working with all consequential benefits.  The Letter Patent Appeals filed by the State

of Bihar challenging the said order have been dismissed by the Division Bench of the

High Court holding that the writ petitioners have been working continuously for more

than ten years without protection of any interim orders of the Court and Tribunal.  It

was  further  held  that  in  view  of  the   

Constitution Bench judgment of this Court in  Secretary, State of Karnataka and

others v. Umadevi (3) and others, 2006 (4) SCC 1 and in State of Karnataka and

others  v. M.L. Kesari and others,  2010 (9) SCC 247, the termination order issued

against the writ petitioners cannot be said to be legal.  Accordingly, LPAs have been

dismissed.  These orders have also been challenged by the State of Bihar in this group

of appeals.

2. In the other connected matters, the Division Bench of the Patna High Court has

allowed the LPAs and the writ  petitions filed by the petitioners therein have been

dismissed holding their appointment as non est and void ab initio.  

3. Since a common issue has been raised in all these appeals, they are disposed of

by this common judgment.

4. The facts of the cases in brief are as under:

5. The writ petitioners had joined the service of State of Bihar under the orders

made  by  the  concerned  Civil  Surgeon-cum-Chief  Medical  Officer  of  the  district.

None of the writ petitioners was appointed through a proper legal recruitment process.

They were posted in Class III or Class IV service in a primary health centre within the

6

jurisdiction of the civil surgeon.  The State Government having realised the large scale

irregularities  committed  in  the  appointment  by  the  concerned  Civil

Surgeon-cum-Chief  Medical  Officer,  scrutinized  all  the  appointments.   The  State

Government having found that large number of appointments were made on the basis

of  false  or  forged  documents,  without  following  due  process  of  recruitment  and

mostly  without  the  appointment  orders,  cancelled  such  appointments  and  the

concerned incumbents were discharged from service.  Those orders of discharge were

challenged before the Patna High Court.  The High Court by a common judgment and

order set aside the impugned orders of discharge from service solely on the ground of

violation of the principles of natural justice.  All the writ petitioners were directed to

be reinstated in service without the salary or remuneration for the interregnum period.

6. Thereafter, the State Government initiated proceedings to terminate the services

of such employees by issuing show cause notice and calling upon each of them to

establish  legality  of  their  respective  appointment.   The  writ  petitioners  failed  to

establish the legality of their appointment.  Once again their services were terminated.

Feeling  aggrieved,  the  writ  petitioners  challenged the  said  orders  before  the  High

Court, which eventually reached the Division Bench in Letter Patent Appeals.  The

Division Bench noticed that the writ petitioners were appointed in Class III or Class

IV service and were serving as such for a long time.  They had claimed the benefit of

regularisation in service.  In view of the judgment of this Court in Umadevi (supra),

the Division Bench in  State of Bihar v. Purendra Sulan Kit, reported in 2006 (3)

7

PLJR 386, directed the State Government to find out which of  the affected employees

are entitled for regularisation.  The direction of the Division Bench is as under:

"All  the  Letters  Patent  Appeals  whether  preferred  by  the State  or  by  affected  employees  and all  the  Writ  Petitions preferred by the affected employees are hereby disposed of by this common judgment and order with a direction to the authorities of the Health Department, Government of Bihar to reconsider the cases of all the affected employees with a view to find out on the basis of relevant facts and law as settled by the Constitution Bench in the case of  Secretary, State of Karnataka vs. Uma Devi  (supra) as to which of such affected employees are fit for regularisation in terms of that judgment, particularly in terms of paragraph 44 of the judgment.   Such  exercise  should  be  completed  within  a period of six months from today.  If for any good reason, the time period is required to be extended then the respondent State  must  file  an  application  for  that  purpose  and  seek extension from this Court.  Till the process is completed, the State of Bihar and its authorities shall maintain status quo in respect of services of the affected employees as existing on date.  The status quo shall get revised by the orders that may be passed by the authorities in respect of affected employees as a result of the exercise to be undertaken by them and their final decision in the light of this judgment and order."

7. Pursuant  to  the  aforesaid  directions,  the  State  Government  constituted  a

committee comprising of five officers (for short 'State Committee') to examine the

facts  of  individual  cases.   However,  two members  of  the  said  committee  did  not

participate in the proceedings for the reasons best known to them.  So, it precipitated

into  committee  of  three  members  which  carried  out  the  aforesaid  directions  and

submitted its report.  The said committee issued show cause notice to each individual,

considered the facts in each individual case and classified the said employees in three

categories mentioned hereinbelow:

8

(i) The employment secured on false and forged document;

(ii) Illegal appointments; and

(iii) Irregular appointments.

8. About 91 cases which were classified as irregular appointments were eventually

ordered to be regularised keeping in view the direction in Umadevi (supra).  Rest of

the  appointments  being  void  ab  initio,  were  cancelled  and  the  services  of  the

concerned  employees  were  terminated.   The  writ  petitioners  again  challenged  the

order of termination before the High Court.  Some of the writ petitions were allowed.

Against such orders the State Government approached the Division Bench by filing a

group of Letter Patent Appeals.   The Division Bench by a common judgment and

order, with the consensus of the learned advocates for the parties, referred the matter

with  detailed  directions  to  a  Committee  comprising  Justice  Uday  Sinha  (retired).

These matters have been dealt with by Justice Uday Sinha (retired).  He has made

report in each case placed before him.  Those matters are not the subject-matter of this

group of appeals.   Writ petitions were filed by a group of appointees challenging the

report of the State Committee before the High Court.  A learned Single Judge of the

High Court allowed the said writ petitions.  The respective orders made by the learned

Single Judge were challenged by filing LPAs before the Division Bench. The Division

Bench allowed some of the appeals.  In some cases, the Division Bench directed the

State Government for regularisation in service of the writ petitioners.  These orders

are under challenge in the instant appeals.

9

9. Learned senior counsel appearing for the State of Bihar submits that the writ

petitioners  are  illegal  appointees.   Those  whose  appointments  were  found  to  be

irregular by the committee constituted in pursuance of the judgment and order of the

Division Bench were distinct  from those whose appointments were illegal  and the

same cannot be treated on the same footing.   Since,  the appointments  of the writ

petitioners  were found illegal,  their  services were terminated after  giving them an

opportunity  of  hearing.   The  State  Committee  has  examined  the  correctness  of

appointment  of  each  of  the  writ  petitioners  and  found  them  to  be  illegal.   The

appointment of the writ petitioners have not been made against the vacant post by the

competent authority.  Their appointment was on non-sanctioned post by incompetent

authority, without an advertisement and that their appointment could not have been

saved in terms of the judgment in Umadevi (supra).   

10. On the other hand, learned counsel appearing for the writ petitioners submitted

that the writ petitioners have the requisite qualification for being appointed to the post

in question.  They have been appointed by the committee constituted and headed by

the Regional  Deputy  Director  considering their  past  health  service experience and

qualification and posted in different primary health centres and worked for the past 2

to  3  decades.   Their  appointment  is  fully  protected  by  the  judgment  in  Umadevi

(supra) and M.L. Kesari (supra).  Therefore, they cannot be terminated from service at

this stage of their career, that too without holding any disciplinary enquiry against

them.

10

11. We have carefully considered the submissions of the learned counsel for the

parties and perused the materials placed on record.  

12. It is not in dispute that the Government of Bihar in its Administrative Reforms

department  had  issued  instructions  for  appointment  to  Class  III  posts  in  the

Government office under its circular No. 16440 dated 03.12.1980.  The said circular

applies to Class III posts other than the posts which are filled in by appointment of

candidates  selected  by  Bihar  Public  Service  Commission  after  a  competitive

examination and to the posts which are governed by the Government resolution dated

28.01.1976.  The said circular sets out a detailed procedure for notifying the vacancies

in Secretariat and its attached offices, District Magistrates and other Muffassil Offices

and for calling for applications, preparation of a common merit list and appointment

from the said common merit list in the order of merit.  It also provides the procedure

for  constitution  of  selection  committee,  preparation  of  merit  lists  and  wait  list,

duration of merit lists and wait list.  A similar circular No. 16441 was also issued on

03.12.1980  for  appointment  to  Class  IV  posts  in  the  Muffassil  Offices  of  the

Government.  These circulars had been issued to avoid discrimination in appointment

to Class III and Class IV posts in the Government offices and provide for generalized

procedure  in  consonance  with  Articles  14  and  16  of  the  Constitution.   The

appointment  of  the  writ  petitioners  have not  been made in  accordance  with these

circulars.  Therefore, the contention  

of the learned counsel for the writ petitioners is that since the writ petitioners have

served for more than 10 years and some of them have even completed 20 years of

11

service, they ought to have been regularized in terms of the judgment in Umadevi

(supra) and M.L. Kesari (supra).

13. In Umadevi (supra) the Constitution Bench has held that unless appointment is

made 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 was an

engagement or appointment on daily wages or casual basis, the same would come to

an end when it is discontinued. A temporary employee could not claim to be made

permanent on the expiry of his term of appointment. It was also 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.   In paragraph 43 of Umadevi (supra), it was held as under:

"43. 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

12

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."

  (Emphasis supplied)

14. However, in paragraph 53 an exception is made to the general principles against

regularisation as a one-time measure which is as under:

"53. One aspect needs to be clarified. There may be cases

13

where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and  referred  to  in  para  15  above,  of  duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in  the  cases  abovereferred  to  and  in  the  light  of  this judgment.  In  that  context,  the  Union  of  India,  the  State Governments and their instrumentalities should take steps to regularise  as  a  one-time  measure,  the  services  of  such irregularly appointed,  who  have  worked  for  ten  years  or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular  recruitments  are  undertaken  to  fill  those  vacant sanctioned posts that require to be filled up, in cases where temporary  employees  or  daily  wagers  are  being  now employed.  The  process  must  be  set  in  motion  within  six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based  on  this  judgment,  but  there  should  be  no  further bypassing of the constitutional requirement and regularising or making permanent,  those not duly appointed as per the constitutional scheme."

15. In some of the LPAs the Division Bench appears to have followed paragraph 11

in M.L. Kesari (supra) for directing regularisation of service without considering the

observations  contained  in  paragraph  7  of  the  judgment.  In  paragraph  11,  it  was

observed that "the true effect of the direction is that all persons who have worked for

more than ten years as on 10.4.2006 [the date of decision in Umadevi (3)] without the

protection of any interim order of any court or tribunal, in vacant posts, possessing the

requisite  qualification,  are  entitled  to  be  considered  for  regularisation  within  six

months of the decision in Umadevi (3) as a one-time measure …………".   However,

14

in paragraph 7 after considering Umadevi (supra) this Court  has categorically held

that  for  regularisation,  the appointment  of  employee  should not  be  illegal  even if

irregular.    

"7.  It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi (3), if the following conditions are fulfilled:

(i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other  words,  the  State  Government  or  its  instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

(ii)  The  appointment  of  such  employee  should  not  be illegal,  even  if  irregular. Where  the  appointments  are  not made  or  continued  against  sanctioned  posts  or  where  the persons appointed do not possess the prescribed minimum qualifications,  the  appointments  will  be  considered  to  be illegal.  But  where  the  person  employed  possessed  the prescribed  qualifications  and  was  working  against sanctioned posts, but had been selected without undergoing the  process  of  open  competitive  selection,  such appointments are considered to be irregular."

     (Emphasis supplied)

16. In  State of Orissa and Anr.  v.  Mamata Mohanty,  (2011) 3 SCC 436, this

Court has held that once an order of appointment itself had been bad at the time of

initial appointment, it cannot be sanctified at a later stage.  It was held thus:

"68(i)  The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/ teachers at initial stage.   Some  of  the  persons  had  admittedly  been appointed merely by putting some note on the notice board of the College.  Some of these teachers did not face  the  interview  test  before  the  Selection  Board. Once an order of appointment itself had been bad at

15

the time of initial appointment, it cannot be sanctified at a later stage".                                               (Emphasis supplied)

17. In the instant cases the writ petitioners have filed the petitions before the High

Court with a specific prayer to regularize their service and to set aside the order of

termination of their services.  They have also challenged the report submitted by the

State Committee.  The real controversy is whether the writ petitioners were legally

and  validly  appointed.   The  finding  of  the  State  Committee  is  that  many  writ

petitioners had secured appointment by producing fake or forged appointment letter or

had  been  inducted  in  Government  service  surreptitiously  by  concerned  Civil

Surgeon-cum-Chief Medical Officer by issuing a posting order.  The writ petitioners

are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical

Officer. They were given notice to establish the genuineness of their appointment and

to show cause.   None of them could establish the genuineness or legality  of their

appointment before the State Committee.  The State Committee on appreciation of the

materials on record has opined that their appointment was illegal and void ab initio.

We do not find any ground to disagree with the finding of the State Committee.  In the

circumstances, the question of regularisation of their services by invoking para 53 of

the  judgment  in  Umadevi  (supra)  does  not  arise.   Since  the  appointment  of  the

petitioners is ab initio void, they cannot be said to be the civil servants of the State.

Therefore,  holding  disciplinary  proceedings  envisaged  by  Article  311  of  the

Constitution or under any other disciplinary rules shall not arise.  

16

18. Therefore, the Civil Appeals filed by the writ petitioners in the aforesaid batch

of appeals are hereby dismissed.  The Civil Appeals filed by the State of Bihar are

allowed and the writ petitions filed before the High Court of Patna in the said cases

are hereby dismissed.  There shall be no order as to costs.

………………………………J. (MADAN B. LOKUR)

………………………………J. (S. ABDUL NAZEER)

………………………………J. (DEEPAK GUPTA)

New Delhi; November 30, 2018.