REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7879 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 11885 OF 2012)

THE STATE OF BIHAR & ORS. .....APPELLANT(S)

VERSUS

DEVENDRA SHARMA .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 7883 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 24749 OF 2012)

CIVIL APPEAL NO. 7884 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 24753 OF 2012)

CIVIL APPEAL NO. 7880 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 20033 OF 2012)

CIVIL APPEAL NO. 7881 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 20036 OF 2012)

CIVIL APPEAL NO. 7882 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 20038 OF 2012)

CIVIL APPEAL NO. 7886 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 157 OF 2014)

CIVIL APPEAL NO. 7885 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 152 OF 2014)

CIVIL APPEAL NO. 7887 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 2192 OF 2014)

CIVIL APPEAL NO. 7888 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 2193 OF 2014)

CIVIL APPEAL NO. 7889 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 2191 OF 2014)

CIVIL APPEAL NO. 7890 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 2042 OF 2014)

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CIVIL APPEAL NO. 7891 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 22300 OF 2014)

CIVIL APPEAL NO. 7892 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 28306 OF 2014)

CIVIL APPEAL NO. 7907 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 32024 OF 2014)

CIVIL APPEAL NOS. 7893-7900 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 29303-29310 OF 2014)

CIVIL APPEAL NO. 7901 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 29399 OF 2014)

CIVIL APPEAL NO. 7906 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 32033 OF 2014)

CIVIL APPEAL NOS. 7902-7903 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 29940-29941 OF 2014)

CIVIL APPEAL NO. 7904 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 30704 OF 2014)

CIVIL APPEAL NO. 7905 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 31218 OF 2014)

CIVIL APPEAL NOS. 7911-7913 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 34818-34820 OF 2014)

CIVIL APPEAL NO. 7908 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 33708 OF 2014)

CIVIL APPEAL NO. 7910 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 34667 OF 2014)

CIVIL APPEAL NO. 7909 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 34668 OF 2014)

CIVIL APPEAL NO. 7611 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 35375 OF 2014)

CIVIL APPEAL NO. 7919 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 3280 OF 2015)

CIVIL APPEAL NO. 7914 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 36755 OF 2014)

CIVIL APPEAL NOS. 7915-7916 OF 2019 (ARISING OUT OF SLP (CIVIL) NOS. 923-924 OF 2015)

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CIVIL APPEAL NO. 7933 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 9534 OF 2016)

CIVIL APPEAL NO. 7932 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 31452 OF 2015)

CIVIL APPEAL NO. 7917 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 2573 OF 2015)

CIVIL APPEAL NO. 7920 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 3306 OF 2015)

CIVIL APPEAL NO. 7918 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 2755 OF 2015)

CIVIL APPEAL NO. 7921 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 5983 OF 2015)

CIVIL APPEAL NO. 7927 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 7571 OF 2015)

CIVIL APPEAL NO. 7925 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 7574 OF 2015)

CIVIL APPEAL NO. 7924 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 7577 OF 2015)

CIVIL APPEAL NO. 7922 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 7562 OF 2015)

CIVIL APPEAL NO. 7923 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 7560 OF 2015)

CIVIL APPEAL NO. 7926 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 7568 OF 2015)

CIVIL APPEAL NO. 7928 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 10397 OF 2015)

CIVIL APPEAL NO. 7929 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 11366 OF 2015)

CIVIL APPEAL NO. 7930 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 14694 OF 2015)

CIVIL APPEAL NO. 7931 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 18197 OF 2015)

CIVIL APPEAL NO. 7934 OF 2019

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(ARISING OUT OF SLP (CIVIL) NO. 36406 OF 2016)

CIVIL APPEAL NO. 7935 OF 2019 (ARISING OUT OF SLP (CIVIL) NO. 24371 OF 2019)

(DIARY NO. 9625 OF 2017)

J U D G M E N T

HEMANT GUPTA, J.

1) This judgment shall dispose of two sets of appeals; one by

the State arising out of an order dated July 12, 2011 passed

by  the  Division  Bench  of  the  High  Court  of  Judicature  at

Patna1 whereby,  the  appeals  filed  by  the  State  were

dismissed directed against the order passed by the learned

Single Judge on October 6, 2009; and another set of appeals

arising out of an order passed by the Division Bench of the

High Court on September 24, 2014 whereby the order passed

by  the  learned  single  Bench  on  October  6,  2009  was  set

aside.  Some other  Appeals  are  also  on  board  against  the

orders passed by the High Court on other dates.  

2) Since the issue in the appeals is common arising out of same

or similar facts, therefore, such appeals have been taken up

for hearing together.  

3) Brief  facts  leading  to  the  present  appeals  are  that  large

number  of  candidates  were  appointed  against  Class  III  or

Class IV posts in the Health Department in Government of

1  for short, ‘High Court’

4

Bihar till 1990 or so.  The services of such employees were

terminated which led to number of writ petitions before the

High Court.  The first round of cases came to end with the

order  of  three  Judge  Bench  of  this  Court  reported  as

Ashwani Kumar & Ors.  v.  State of Bihar & Ors.2.  This

Court  held  that  recruitments  made  by  Dr.  Mallick  were

arbitrary,  capricious,  null  and  void  after  considering  the

Government  order  dated  December  3,  1980  as  well  as

Government resolution dated March 25, 1983.  It  was also

held that none of the appointees have any accrued right in

the absence of sanctioned posts.  It was held that the whole

exercise remained in the realm of an unauthorised adventure.

Nothing could come out  of  nothing. Ex nihilo nihil  fit.  Zero

multiplied by zero remains zero.   It  was held that army of

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.

4) It is thereafter in another round, the Division Bench of the

High Court in State of Bihar & Ors. v. Purendra Sulan Kit

& Ors.3 decided approximately 819 Letters Patent Appeals

and the writ petitions.  The High Court noticed that the entry

to Class III and Class IV posts in the health department during

the  same  period  were  through  back  door  method  and,  in

2  (1997) 2 SCC 1 3  2006 SCC OnLine Pat 290

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many  cases,  through  forged  and  fabricated  letters  of

appointment  or  through  transfer  orders  without  actual

appointments and, in some cases, appointments were made

without  availability  of  sanctioned  posts  made  by  the

authority not competent to appoint.  The High Court directed

the  Department  of  Health  in  the  Government  of  Bihar  to

scrutinize  the  cases  of  affected  employees  afresh  on  the

basis of relevant materials and in view of the law declared by

this  Court  in  Secretary,  State  of  Karnataka  & Ors.  v.

Umadevi (3) & Ors.4.  The High Court held as under:

“10.  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 v. 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

4  (2006) 4 SCC 1

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employees as a result of the exercise to be undertaken by them and their final decision in the light of this judgment and order.”

5) It is in pursuance to such direction; the State constituted a

Committee  of  five  officers5 to  examine  the  facts  of

individual’s case.  Two members of the State Committee did

not participate in the proceedings nor signed the Report but

remaining three members submitted its report on December

31,  2008.   After  considering the  facts  of  each individual’s

case, the employees were put in following three categories:

(a) employment secured on forged documents;

(b) illegal appointments; and

(c)  irregular appointments.

 6) The  State  Committee  found  91  cases  of  irregular

appointments;  228  cases  of  illegal  appointment  and  358

cases of forged appointment letters. In terms of the Report of

the State Committee, termination orders were again passed

in  respect  of  the  candidates  falling  in  the  categories  i.e.

employment  secured  on  forged  documents  and  illegal

appointments,  whereas,  91  candidates  whose  appointment

was found to be irregular were allowed to continue.  Such

Report  of  the  State  Committee  as  well  as  the  termination

orders were challenged before the learned Single Bench by

filing separate writ petitions.  The lead case being CWJC No.

6575  of  2009.   All  such  writ  petitions  were  allowed  on

5  for short, ‘State Committee’

7

October  6,  2009  whereby,  the  report  submitted  by  three

members  on  December  31,  2008  was  quashed  with  a

direction to reinstate the employees.

7) The order dated October 6, 2009 was challenged by the State

in  some of  the  intra-court  appeals  before  the  High  Court.

Such appeals were dismissed on March 29, 2011,  inter alia,

on the ground that inquiry was conducted in violation of the

principle  of  natural  justice  as  only  three  members  have

signed the Report.  It was thus held that such termination is

contrary  to  the  judgment  of  this  Court  in  State  of

Karnataka & Ors. v. M.L. Kesari & Ors.6 It was found that

since  the  writ  petitioners  have  worked  for  more  than  ten

years, therefore, the services are entitled to be reguarlised.

Such judgment is reported as The State of Bihar & Ors. v.

Binay Kumar Singh & Ors.7.  This Court has allowed some

of the appeals arising out of order dated March 29, 2011 in

State of Bihar v. Kirti Narayan Prasad8.  In the meantime,

many appeals filed by the State were dismissed by the High

Court on many dates including June 30, 2010, July 12, 2011,

July 14, 2011, July 20, 2011, April 15, 2013, October 30, 2013

and  November  30,  2015  which  are  subject  matter  of

challenge in the present appeals.    

8) The order passed by the learned Single Judge also gave rise

6  (2010) 9 SCC 247 7  2011 (3) PLJR 547 8  2018 SCC OnLine SC 261

8

to LPA No. 1623 of 2009 and other appeals.  Such appeals

were allowed by consent on February 11, 2010 whereby, one-

man  Committee  under  the  Chairmanship  of  Hon’ble  Mr.

Justice  Uday Sinha,  a  retired Judge of  the High Court  was

entrusted the task of looking into various facts of the nature

of  appointment with the view to adjudicate the legality  of

their  appointments  and  continuance  in  service.

Subsequently, LPA No. 560 of 2010 and some other appeals

were allowed on March 23, 2010 in the light of order passed

in the aforesaid LPA but without any consent.  The said orders

were challenged before this Court in Civil Appeal No.6484 of

2011 and other matters.  The appeals were allowed by this

Court  on  August  8,  2011,  inter  alia,  on  the  ground  that

without consent, the appeal could not be disposed of in terms

of LPA No. 1623 of 2009 and other connected appeals. The

appeals were directed to be decided afresh. It is thereafter,

the Division Bench passed an order on September 24, 2014

setting aside the order passed by the learned Single Bench

on October 6, 2009.  

9) The Division  Bench held  that  in  view of  the appointments

being  illegal  and  void  ab  initio,  the  services  cannot  be

reguarlised and that the judgment of the Division Bench of

the High Court in Binay Kumar Singh is contrary to the Full

Bench judgment in Ram Sevak Yadav & Anr. v. The State

9

of Bihar & Ors9, wherein the appellants were appointed on

Class IV posts by the Civil Surgeon in the Health Department

as  in  the  present  set  of  appeals  but  their  services  were

terminated  in  the  year  2001  for  the  reason  that  their

appointments were illegal.  The Full Bench of the High Court

held as under:   

“41.  The public power to make appointment on public posts is conferred for public good. The power is given to the officer concerned by the government in trust,  that it  shall  be used and not abused. If the trust is belied, the protection  conferred  upon  a  government servant  stands  denuded.  The  answerability and  accountability  is  then  individual  of  the officer. The government is duty bound to take appropriate  civil/criminal  action  against  the officer. The illegality in the appointment is not a  one  way  street.  If  there  was  someone willing to pay a price for the job, there was another  waiting  to  take  advantage  of  the same by fixing a price. It is not without reason that majority of such appointments relate to class III and IV posts. The standard by which the government professes to act is the same standard by which its actions shall be judged. Therefore  whenever  the  government terminates an appointment being illegal, it is the constitutional duty of the government to simultaneously  take  action  against  the officials  who  belied  the  trust  of  the government. Those who made hay while the sun shined must see the darker cloudy days also…….

xx xx xx

44.    The  petitioners  were  appointed  in temporary capacity by a process contrary to Article  14  of  the  Constitution  without competitive selection as an individual favour doled  out  to  them.  There  is  no  material  to

9  2013 Lab IC 1607 (FB)  

10

hold that they were appointed against vacant sanctioned post and possessed qualifications for  the  same.  They were  terminated  before (Uma Devi) (supra) and have sought to retain their  status  by  virtue  of  Court  proceedings and are therefore not entitled to the benefits of paragraph 53. The issue of any procedural irregularity  for  a  finding  of  forged appointment is therefore irrelevant.”

10) The Division Bench in its order dated September 24, 2014,

following the Full Bench judgment of that court, now subject

matter of challenge by the employees in these appeals, held

as under:

“………… The State Government, pursuant to the aforesaid direction, in its wisdom, appears to  have  constituted  a  committee  of  five members. Ultimately, only three members sat in the enquiry; held the enquiry and made its report.  We do not  see  any  reason  why  the said report cannot be believed or should be held to be illegal or invalid. It is not in dispute that  the  State  Committee  did  offer opportunity of representation and hearing to the  affected  employees.  The  principles  of natural  justice  having  been  complied  with, this  Court  ought not  to  have any reason to disbelieve  or  interfere  with  the  finding recorded by the State Committee. It  is note worthy  that  the  writ  petitioners  have  not challenged the finding recorded by the State Committee or at least have not been able to establish  that  the  respective  finding  is erroneous on the facts of the case. We have recorded the facts of one case just to bring home the  nature  of  illegality  committed  by the Civil Surgeon-cum- Chief Medical Officer. As recorded hereinabove, in repeated enquiry made  by  the  State  Government  all  such appointments were found to be illegal,  void ab-initio. Unless there is a strong evidence of such  finding  being  wrong,  this  Court  in exercise of power of judicial review shall not

11

interfere with such finding.  

In  the present set of  writ  petitions, none of the writ petitioners has dislodged the finding of illegal appointment or has established that his or her appointment was legal and valid in all  respects.  In  our  view, the learned single Judge  has  erred  in  totally  discarding  the report of the State Committee on the premise that  only  three  members  of  the  committee had  conducted  the  enquiry  and  had submitted the report.

xx xx xx

This brings us to the last question whether in view of their long service, the writ petitioners are  entitled  to  regularization  in  service  as observed  by  the  Hon’ble  Supreme  Court  in Uma Devi  (3)  (supra).  This  was  the  precise question which was referred to the Full Bench in  the  matter  of  Ram  Sevak  Yadav  &  Anr. (supra).  The  Full  Bench  of  this  Court  has categorically held that the judgment in Uma Devi (supra), prohibits regularization of such appointments,  the  period  of  service  being irrelevant;  and that illegal  appointment void abinitio  cannot  be  regularised  under  any circumstances.  In  view  of  the  aforesaid decision of the Full  Bench of this Court,  the law laid down by the Division Bench of this Court in the matter of The State of Bihar & Ors. Vs. Binay Kumar Singh & Ors. [2011 (3) PLJR 547] is no longer a good law.  

In the present case, the appointments of the writ petitioners have been repeatedly held to be non est or void ab initio. The question of regularization  of  their  service  even  by invoking paragraph 44 of the judgment in the matter  of  Uma  Devi  (3)  (supra)  shall  not arise.”

11) The appointments in the Health Department to Class III and

Class IV posts firstly came up for consideration before this

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Court in Ashwani Kumar.  This Court examined the following

points:

“1. Whether the appointments of Class III and Class  IV  employees  on  the  Tuberculosis Eradication  Scheme  as  a  part  of  20-Point Programme were legal and valid.

2.  Whether  the  confirmation  of  these employees was legally justified.

3. Whether principles of natural justice were violated  while  terminating  services  of  all these  6000  employees  appointed  by  Dr Mallick.

4. What relief, if any, can be granted to the appellants.”

12) In  respect  of  first  point  for  determination,  the  Court  was

considering  the  fact  that  Dr.  A.A.  Mallick,  Deputy  Director,

Health  Department  of  the  Government  of  Bihar,  was  in

charge  of  Tuberculosis  Centre  and  as  Assistant  Director  of

Filaria,  had  appointed  6000  employees  against  sanctioned

posts of 2250.  This Court found that all these recruitments

were arbitrary, capricious, null and void against violation of

all  norms of  administrative  procedure  contrary  to  separate

Government orders dated December 3, 1980 for Class III and

Class IV posts.  This Court considering the resolution dated

March  25,  1983  relied  upon  by  the  employees  to  claim

continuity of service, held as under:

“12.  … We agree with the contention of Shri Singh,  learned  counsel  for  the  respondent- State that all these recruitments made by Dr Mallick  were  arbitrary,  capricious  and  were null  and  void  as  he  did  violence  to  the

13

established  norms  and  procedures  for recruiting such employees. Dr Mallick was not giving  appointments  to  these  employees  in his private establishment. He was recruiting them in a Government Programme which was supported  by  planned  expenditure.  Such recruitment to public services could not have been effected  in  such  a  cavalier  fashion  in which  it  was  done  by  Dr  Mallick……….. Unfortunately Dr Mallick treated this Scheme as his private property.  The device adopted by him was in flagrant violation of all norms of administrative procedure known to law. In this  connection  we  may  profitably  refer  to Government Order  dated  3-12-1980.…   It  is not in dispute that none of these instructions and  the  procedure  laid  down  for  recruiting Class  III  and  Class  IV  employees  were followed  by  Dr  Mallick  while  recruiting  ad hoc/daily-wage employees at the initial stage in  the  Tuberculosis  Eradication  Scheme supervised  and  monitored  by him………………….. …. But  the  very  Resolution  indicates  that recruitment  had  to  be  for  regular appointments  to  be  made  by  the  Selection Committee  to  Class  III  and  Class  IV  posts under  Malaria,  Filaria  and  T.B.  programme. Therefore,  recruitment was to be done in a regular  manner  against  available  posts.  It never gave a blanket power to Dr Mallick to create new posts which were not sanctioned and to make recruitment thereon. Nor did it give any authority to throw the recruitment procedure  for  recruiting  such  Class  III  and Class IV employees to the winds and to make recruitment  in  an  arbitrary  manner  at  his whims and fancies.  Nowhere this Resolution indicates that the earlier government orders laying  down  the  procedure  regarding recruitment  to  Class  III  and  Class  IV  posts were to be given a go-by. Consequently, the Resolution of 25-3-1983 has to be read along with the Government Orders dated 3-12-1980 and not dehors them.…. It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available on which

14

he  can  work  and  can  be  paid  as  per  the budgetary sanctions...  It  must,  therefore, be held  that  the  appointments  of  6000 employees  as  made  by  Dr  Mallick  in  the Tuberculosis  Eradication  Scheme  were  ex facie  illegal.  As  they  were  contrary  to  all recognised recruitment procedures and were highly arbitrary, they were not binding on the State  of  Bihar.  The  first  point  for determination,  therefore,  will  have  to  be answered in the negative.”

13) In respect of second point, it was held that if the initial entry

itself  is  unauthorised  and  that  appointment  is  not  against

sanctioned vacancy, therefore, the question of regularising of

services would never arise for consideration.  This Court held

as under:

“13.   …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….. 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. Ex  nihilo  nihil  fit.  Zero multiplied by zero remains zero...”

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14) While considering the argument to seek regularisation of the

services, this Court held as under:  

“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 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…………. … 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

16

and  whatever  purported  regularisation  was effected in their favour remained an exercise in futility. … 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.”

15) The third point for consideration was in respect of violations

of principle of natural justice.  This Court found that as many

as 3750 candidates were appointed in  totally  unauthorised

manner and were squatting against non-existing vacancies.

A situation had arisen which required immediate action for

clearing  the  stables  and  for  eradicating  the  evil  effects  of

these  vitiated  recruitments  so  that  the  Tuberculosis

Eradication Scheme could be put on a sound footing.  The

High Court had directed the State to appoint a Committee to

thoroughly  investigate the  entire  matter.   Such Committee

had issued public notices.  987 candidates appeared before

the Committee.  This Court held that the material supplied by

the employees concerned was taken into consideration and

then the Committee came to a firm decision to the effect that

all these appointments made by Dr Mallick were vitiated from

the inception and were required to be set aside and that is

how the impugned termination orders were passed against

17

the appellants. Thus, it was held that the principles of natural

justice were not violated if no opportunity was given to the

employees concerned to have their say in the matter before

their appointments were recalled and terminated.  

16) However, while answering point No. 4, the State was directed

to start a fresh exercise for recruiting Class III and Class IV

employees against  available  2250 vacancies  or  even more

vacancies.  The second round of cases started with the report

of the State Committee constituted in terms of directions of

the High Court in Purendra Sulan Kit.

17) When the present set of appeals came up for hearing before

this Court on April 3, 2018, this Court found the following four

categories of cases:

“(i)  Appointments  made  on  the  basis  of  forged appointment letter. They are at S.Nos. 2 to 48.  

(ii) Appointments made on the basis of forged nursing registration certificate. They are at S. Nos. 49-50-51.  

(iii)  Appointments  made by  a  person  who was  not competent  to  make  the  appointment.  They  are  at S.Nos. 52 to 92.  

(iv)  There  is  a  residual  category  at  S.NO.  1  i.e. appointment made by Dr. A.A. Mallick, Dy. Director, T.B.  and  S.  Nos.  93  &  94  who  are  now  claiming appointment.  Their  cases  will  be  dealt  with separately.”

18) The first category of cases was decided by three Judge Bench

in Kirti Narayan Prasad on November 30, 2018 wherein, it

18

was held as under:

“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.”

19) The cases in  the  second category  i.e.  appointment  on the

basis  of  forged  nursing  registration  stands  on  the  same

footing as category one though it is argued by the appellants

in  three appeals  that  nursing  registration  certificate  is  not

19

forged but the matriculation certificate on the basis of which

the  candidates  have  undergone  Auxiliary  Nurse  Mid-Wife10

course was found to be forged.  The State Committee has

found that ANM certificate is a forged certificate.  Even if, the

certificate of ANM is not forged as argued before this Court

but the Matriculation Certificate is said to be forged, the fact

is  that  the  educational  qualification,  a  pre-condition  for

undergoing  nursing  course,  was  found  to  be  forged.

Therefore, the forgery is in the basic eligibility condition to

undertake  ANM  course,  which  will  vitiate  the  process  of

appointment.   For  the  reasons  recorded  in  Kirti  Narayan

Prasad, Civil Appeal Nos. 7906 of 2019, 7919 of 2019 and

7920 of 2019 are dismissed.

20) Coming to  third  category  of  cases,  Mr.  Mukherjee,  learned

counsel  for the State referred to the separate Government

Circulars dated December 3, 1980 in respect of Class III and

Class IV category posts.  It is contended that appointments on

such circulars have been found to be illegal by this Court in

Ashwani Kumar,  which view was in fact, approved later by

Constitution  Bench  judgment  in  Uma  Devi,  wherein  this

Court held as under:

“33.    It  is  not  necessary  to  notice  all  the decisions of this Court on this aspect. By and large  what  emerges  is  that  regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be

10  for short, ‘ANM’

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made in a permanent vacancy, but the same should  soon  be  followed  by  a  regular recruitment  and  that  appointments  to  non- available posts should not be taken note of for  regularisation.  The  cases  directing regularisation have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without  really  laying  down  any  law  to  that effect,  after  discussing  the  constitutional scheme for public employment.

xx xx xx 53.   One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128 :  AIR 1967 SC 1071]  , R.N.  Nanjundappa [(1972)  1  SCC 409  :  (1972)  2  SCR  799]  and B.N. Nagarajan [(1979)  4  SCC  507  :  1980  SCC (L&S) 4 : (1979) 3 SCR 937] 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 above-referred to and in  the  light  of  this  judgment…………….” (Emphasis Supplied)

21) In  Uma  Devi,  the  argument  that  the  employees  have

legitimate expectations was negated when this Court held as

under:

“46.  ………….. The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision- maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which

21

he  has  been  given  an  opportunity  to comment;  or  (ii)  he has received assurance from the decision-maker that they will not be withdrawn  without  giving  him  first  an opportunity  of  advancing  reasons  for contending  that  they  should  not  be withdrawn…  There  is  no  case  that  any assurance was given by the Government or the department concerned while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing  it.  The  very  engagement  was against  the  constitutional  scheme.  Though, the  Commissioner  of  the  Commercial  Taxes Department sought to get the appointments made permanent, there is no case that at the time  of  appointment  any  promise  was  held out.  No such promise could also have been held out in view of the circulars and directives issued  by  the  Government  after Dharwad decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 : (1990) 1 SCR 544] . Though,  there is  a  case that  the State  had made regularisations in the past of similarly situated  employees,  the  fact  remains  that such regularisations were done only pursuant to  judicial  directions,  either  of  the Administrative Tribunal  or of  the High Court and in some cases by this Court….

47.    When  a  person  enters  a  temporary employment  or  gets  engagement  as  a contractual  or  casual  worker  and  the engagement  is  not  based  on  a  proper selection as recognised by the relevant rules or  procedure,  he  is  aware  of  the consequences  of  the  appointment  being temporary,  casual  or  contractual  in  nature. Such  a  person  cannot  invoke  the  theory  of legitimate expectation for being confirmed in the  post  when  an  appointment  to  the  post could  be  made  only  by  following  a  proper procedure  for  selection  and  in  cases concerned,  in  consultation  with  the  Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual

22

employees….”

22) The State Committee has examined all the appointments and

segregated  appointments  based  on  forged  documents  and

also  irregular  appointments.   Once the  detailed  report  has

been submitted examining the merit of each candidate, and

when the  judgment  of  this  Court  in  Ashwani  Kumar and

Uma Devi  conclusively  answer  the  questions  against  the

employees,  no  further  discussion  on  the  arguments  raised

would  survive.   However,  since  the  arguments  have  been

addressed  in  respect  of  the  third  category  of  cases  i.e.

appointments made by a person who was not competent to

make the appointments, we shall consider as to what will be

the effect of such appointments.   

23) Mr.  Mukherjee,  learned  counsel  for  the  State  referred  to

various  Government  orders  issued  from  time  to  time  and

submitted  that  such  category  has  to  be  examined  in  two

groups;  one  where  the  appointments  were  made  by  the

incompetent authority; and second, the appointments made

by the competent authority but without any sanctioned post

and without following the procedure for appointment to public

post.

24) It  is  admitted  that  there  is  no  statutory  rule  in  terms  of

proviso to Article 309 of the Constitution for appointment to

Class III and Class IV categories in the State.  The matter of

23

appointment is regulated by the Executive instructions.  Mr.

Mukherjee has referred to Bihar Health Manual.  Chapter I of

the  Manual  deals  with  Organisation  and  functions  of  the

Health Department of the State.  It was pointed out that from

May 1, 1953, the Medical and the Public Health Departments

were  amalgamated  into  one  department  called  the

Department of Health under the Director of Health Services.

It was pointed out that the Director of Health Services is the

appointing  authority  in  respect  of  all  non-gazetted

appointments  in  the  department  including  the  Subordinate

Medical Service.  To assist the Director, there is one Additional

Director  and  three  Deputy  Directors  along  with  other

gazetted  officers  including  Assistant  Directors  of  Health

Services (M. and C.H.).  The relevant extract of the Manual

reads as under:

“2. – Administrative and Financial  Powers of the Officers of the Health Department at the Headquarters and in the Subordinate Offices. (a) Powers of the Director of Health Services, Bihar.

3.   The  Director  of  Health  Services  is  the appointing  authority  in  respect  of  all  non- gazetted  appointments  in  the  department including the Subordinate Medical Service.

(No. 7759., dated the 9th June 1916)”

6.  The following powers are also delegated to the Director of Health Services being a Head of Department under respective Codes, rules and orders:-

S. No.

Nature of Power Reference  to rules  or

Limit of power

24

orders 1

xxx

2 Power  to  vary details viz., rate of pay,  number  of hand  and  period of  employment  of temporary establishment.

Paragraph 103,  Bihar and  Orissa Treasury Manual.

The delegation is subject to the following conditions:- (1)  The cost should not be raised  beyond  the  total amount sanctioned. (2)  Where  the  temporary establishment is sanctioned by  the  State  Government, the pay of no post should be raised  beyond  the  limit  of minimum of  the  prescribed scale thereof. (3) In other cases the pay of no  post  should  be  raised beyond the limit of sanction enjoyed  by  the  authority which  sanctioned  the temporary establishment.

xxx 47 Power to appoint a

Government servant  to  hold temporarily  or  to officiate  in  more than one post at a time.

Rule  103  of the  Bihar Service Code.

Full  power  provided  that such  power  shall  extend only to cases in which he is competent  to  make  a substantive  appointment  to each  of  the  posts concerned.

25) Clause  7  of  the  Manual  contemplates  powers  of  Deputy

Director  of  Health  Services  whereas  clause  8  deals  with

powers of Deputy Director of Health Services (Public Health).

The  powers  of  Assistant  Director  of  Health  Services  are

contained in Clause 9 which reads as under:

“9.   The  following  powers  are  delegated  to the  Assistant  Director  of  Health  Services (Administration), Bihar:-

(a) To deal with and sign all correspondence with subordinate offices, Accountant-General, Bihar,  the  departments  of  Government  and other offices for and on behalf of the Director of Health Services under his supervision.

25

(b)   To  countersign  all  travelling  allowance bills of the non-gazetted staff employed under the Director of Health Services.

(c)   To pass and countersign all  indents for forms and stationery received in the office of the  Director  of  Health  Services  from  the Muffasil  offices subject to the condition that the reduction or increase by more than 5 per cent  should  require  the  sanction  of  the Director of Health Services.

(d)  To  sanction  all  local  purchase  of contingent articles for headquarters office or the  Muffasil  offices  not  exceeding  Rs.20  on any one item. (Govt. order no. 262/HD, dated the 13th July,  1953.)”

26) The Civil Surgeons in Districts as also State Leprosy Officer

and Director,  T B Demonstration Centre are subordinate to

the  Director  of  Health  Services.   The  powers  of  Assistant

Director of Public Health are as under:

“13.   Powers  to  the  Assistant  Directors  of Public Health-

(a) xxx

(b) xxx

(c) To recruit  non-gazetted epidemic staff like Health Assistants and Vaccinators against sanctioned posts allowed to their  respective divisions.   The  appointment  of  Epidemic doctors  will  ordinarily  be  made  by  the Director  of  Health  Services  but  in  cases  of emergency the  Assistant  Directors  of  Public Health  will  have  authority  to  appoint  them against  sanctioned  posts  subject  to  the approval  of  the  Directorate  being  obtained later on within three months. (Govt.  order  no.  27680-H  date  dated  the  1st

November, 1954).”

26

27) A circular was issued by the State on September 5, 1979 with

regard  to  retrenchment  of  Government/Semi-Government

employees appointed on category III and IV temporary posts

on ad-hoc basis.  Thereafter, separate circulars were issued

providing for procedure for appointment on category III and IV

posts  on  December  3,  1980.   The  relevant  clause  for  the

purposes  of  determining  the  person  competent  to  make

appointment in respect of Category III posts reads as under:

“(b)  The competent authority of Secretariat and  attached  offices,  District  Collector  and equivalent  Officer  Incharge  of  divisional offices of  other departments will  collect  the information from attached offices at the start of the year for the posts actually to be filled during  the  year  and  the  information  of vacancies.   Suitable  candidates  will  be selected from these applicants  according to the  vacancies  and  suitable  persons  will  be allotted  to  various  attached  offices  for appointment,  as  per  requirement,  from  the common merit list.  All the appointments will be made by the competent authority for their respective offices.

xx xx xx

(e) (i)  One Selection Committee will be made for preparation of merit list in the Secretariat and  attached  offices  and  the  Head  of attached establishment will be the Chairman of this Committee and any senior officer will be  the  Member  of  Committee,  who  is nominated  by  the  Head  of  Establishment. Officer  of  Scheduled  Caste/Scheduled  Tribe available  in  the  department  will  be  the second member.   In  case no such officer is available,  if  the  officer  of  that  category  is available in another department, then he will be included in the Committee and if even this

27

is also not possible, then Joint/Dy. Secretary of the Personnel Department, who perform the works related to Scheduled Caste/Scheduled Tribe, will be appointed as a Member.

(ii)   For  preparation  of  merit  list  at  District level,  District  Head  of  the  attached Establishment  will  be  the  Chairman  of selection  committee  constituted  and  any other  senior  officer  of  that  Establishment, who is nominated by their District level Head, will be its member.  Second Member will be the District Welfare Officer so that at the time of  preparation  of  merit  list  of  government orders regarding maintenance no violation is committed.  

xx xx xx

(3)   It  has  come  into  the  knowledge  of government that appointments on category 3 posts  are  not  being  made according  to  the procedure  prescribed  in  the  above-said resolution.   The  act  of  working  against  the prescribed  procedure  clearly  means  the violation  of  government  orders,  which  is  a matter  of  regret.   Therefore,  it  is  expected that  the  appointments  on  category  3  posts are  made  according  to  the  procedure prescribed  in  the  above-mentioned Resolution.   It  will  be  the  responsibility  of each appointing authority to ensure that the procedure  with  regard  to  appointment  on category 3 posts is followed strictly.  In cast it is  found  that  prescribed  procedure  has  not been  followed  by  the  appointing  authority with  regard  to  appointment  on  category  3 posts,  then  Government  will  have  to  take necessary action against him.  Inquiry will be conducted  immediately  on  receiving  the complaint that the officer has not followed the prescribed  procedure  and  if  the  charge  is found proved, the officer will be placed under suspension  immediately  and  departmental action  will  be  taken  to  remove  him  from services.  Such incorrect appointments will be cancelled immediately.”

28

28) Similar is the circular in respect of appointment to Category

IV post.   On January  20,  1992,  the State issued a  circular

regarding  transfer  and  posting  of  Class  III  and  Class  IV

employees of Health Department and it was decided that the

employees shall be decentralized at the District level.  It was

communicated that  transfer  and posting as far  as possible

shall  remain  within  the  jurisdiction  of  appointing  officer.

Clause 3 and 6 of the said circular reads as under:

“3.   Appointment  officers  for  different category of employees of Health Department are briefly mentioned as under:

(a)  Civil Surgeon – For district class III and IV employees  (below  superior  category)  and A.N.M.

(b)   Superintendent, Medical College Hospital –  for  Class  III  and  IV  employees  posted  at Medical College Hospital.

(c)   State  Programme  Officer  (Malaria,  TB, Leprosy, Faileria) – Class III and IV employees under National Programme.

(d)   Director  Head,  Public  Services  –  Lower and Upper Division Clerk, A Grade Nurse, L.H. xxx  Midwife,  Matron,  Public  Health  Nurse, Sanitary  Inspector,  Laboratory  Assistant,  X- ray technician, Physiotherapist, Occupational Therapist,  Ophthalmic  Assistant,  Broadcast Trainer,  Health  Trainer,  Dy.  District  Mass Media Officer, Stenographer, Cholera Worker, Special Cholera Worker, Movie Player etc.”

6.  On the above basis, all the earlier orders are superseded by the following order: (a)  Cadre  of  employees  appointed  by  civil surgeon  will  be  of  district  level.   This  will include staff of Regional Dy. Director Office.

29

xx xx xx

(h)   Civil  Surgeon  will  undertake transfer/posting  of  those  Class  III  and  IV Employees  for  whom  he  is  original appointment  officer.   Such  transfer  and postings will be done within the district.”

29) On the basis of the abovesaid circulars and the Government

Orders, it is argued that the appointing authority of Class III

and  Class  IV  posts  is  Director,  Health  Services.   However,

there  was  some  delegation  in  respect  of  certain  other

administrative matters but there was no delegation in respect

of appointment against Class III and Class IV category posts.

The powers conferred on Assistant Director in terms of clause

13(c) of Chapter I of Bihar Health Manual empowers Assistant

Director  (Public  Health)  to  appoint  non-gazetted  epidemic

staff  like  Health  Assistants  and  Vaccinators  against

sanctioned posts but only in case of emergency.  A finding

has been recorded in Ashwani Kumar that 2250 posts were

sanctioned  whereas  6000  appointments  were  made.   The

Tuberculosis eradication under the 20-Point Programme was

not an emergency activity which may empower the Assistant

Director  to  make large  number  of  appointments  but  again

such emergent powers could be exercised only in respect of

sanctioned posts.   

30) The exception in respect of appointing authority came with

the  circular  dated  December  3,  1980  which  contemplated

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that suitable candidates be selected as per requirement from

common merit list by the competent authorities of Secretariat

and attached offices; District Collector and equivalent Officer

In  charge  of  the  Divisional  Offices.   Dr.  Mallick,  Deputy

Director in the subordinate offices of the Directorate of Health

Services was not competent to make appointments against

Category III or Category IV posts in view of the provisions of

the Manual as also in terms of the circular dated December 3,

1980 recorded by this Court in Ashwani Kumar as well.   

31) Though,  certain  appointments  have  been  made  by  Civil

Surgeon which Mr. Mukherjee does not dispute as he was the

competent  authority  but  it  is  argued  that  none  of  the

requirements  to  fill  up  the  public  post  was  adhered  to.

Appointments  were  made  to  the  public  posts  without

following  any  procedure  and  without  there  being  any

sanctioned post.   

32) An argument was raised on behalf of learned counsel for the

employees that some of the appointments have been made

by  Regional  Deputy  Director  as  four  posts  of  Assistant

Director were converted into that of Regional Deputy Director.

We do not find any merit in the said argument.  The post of

Assistant Director was provided in the Directorate of Health

Services  with  no  delegation  of  appointment  except  in  the

case of emergency against sanctioned posts.  Such Regional

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Deputy  Director  has  not  been  conferred  power  of

appointment against Class III and Class IV posts. Therefore,

the  Assistant  Director  was  incompetent  to  make

appointments  against  the  sanctioned  posts  except  in

emergent cases and so is Regional Deputy Director.

33) In  Ashwani  Kumar,  this  Court  has  dealt  with  the

appointments made against Class III and IV category posts in

the Health Department itself.  The reasoning recorded therein

is that the appointments have been proved to be made not

against the sanctioned posts and in a manner, which is wholly

arbitrary,  capricious and,  therefore,  employees will  not  get

any right to seek regularisation of their services.  

34) In Civil Appeal arising out of SLP (Civil) No. 20033 of 2012,

the  respondent  was  appointed  by  Dr.  A.A.  Mallick.   Such

appointments have been found to be illegal by this Court in

Ashwani  Kumar.   We find  that  there  is  no  reason  to  re-

examine the appointments made by Dr. A.A. Mallick.  Such

appointments  have  been  adversely  commented  upon  in

Ashwani  Kumar case.  Therefore,  no  right  will  accrue  in

favour of the respondent.  Consequently, the appeal arises

out of SLP (Civil) No. 20033 of 2012 is allowed and the order

passed by the High Court is set aside.  35) Lastly,  it  is  argued that  employees have been working for

many  years,  some  for  more  than  25  years,  therefore,

humanitarian view should be taken to set aside the order of

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termination and regularise their services so as to make them

entitled to pension and other retirement benefits.

36) We do not find any merit in the said argument.  A Full Bench

of  the  High  Court  in  Rita  Mishra  &  Ors.  v.  Director,

Primary  Education,  Bihar  &  Ors.11 while  dealing  with

appointment  in  the  education  department  claiming  salary

despite  the  fact  that  letter  of  appointment  was  forged,

fraudulent or illegal, declined such claim. It was held that the

right  to  salary  stricto  sensu springs  from  a  legal  right  to

validly hold the post for which salary is claimed. It is a right

consequential to a valid appointment to such post. Therefore,

where the very root is non-existent, there cannot subsist a

branch thereof in the shape of a claim to salary. The rights to

salary,  pension  and  other  service  benefits  are  entirely

statutory in nature in public service. Therefore, these rights,

including the right  to salary,  spring from a valid  and legal

appointment  to  the  post.  Once  it  is  found  that  the  very

appointment is illegal and is  non est in the eye of law, no

statutory  entitlement  for  salary  or  consequential  rights  of

pension and other monetary benefits can arise.  

37) Such judgment of the Full Bench was approved by three Judge

Bench of this Court in a Judgment reported R.  Vishwanatha

Pillai v. State of Kerala & Ors.12.  This Court held as under:

11  AIR 1988 Patna 26 12  (2004) 2 SCC 105

33

“17.  The point was again examined by a Full Bench  of  the  Patna  High  Court  in Rita Mishra v. Director,  Primary  Education, Bihar [AIR 1988 Pat 26 :  1988 Lab IC 907 : 1987  BBCJ  701  (FB)]  .  The  question  posed before the Full  Bench was whether  a public servant was entitled to payment of salary to him for the work done despite the fact that his  letter  of  appointment  was  forged, fraudulent or illegal. The Full Bench held: (AIR p. 32, para 13)

“13. It is manifest from the above that the rights  to  salary,  pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights,  including  the  right  to  salary, spring  from  a  valid  and  legal appointment to the post. Once it is found that the very appointment is illegal and is  non  est  in  the  eye  of  the  law,  no statutory  entitlement  for  salary  or consequential  rights  of  pension  and other  monetary  benefits  can  arise.  In particular,  if  the  very  appointment  is rested on forgery, no statutory right can flow from it.”

18.  We  agree  with  the  view  taken  by  the Patna High Court in the aforesaid cases.”

38) The  appointments  made  have  been  examined  by  five-

member Committee.  91 candidates have been found to be a

case  of  irregular  appointment.   Such  candidates  are

continuing in service. None of the candidates in the present

set of appeals could point out that they were appointed in a

manner  meant  for  filling  up  of  vacant  post  of  public

appointment i.e. by advertisement and by giving opportunity

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to all eligible candidates to apply.   

39) This  Court  in  State  of  Jharkhand  &  Ors.  v.  Manshu

Kumbhkar13, while allowing of the appeal of the State found

that the 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.  

40) This Court in State of Bihar v. Upendra Narayan Singh &

Ors.14 allowed the appeal of the State and that Section 4 of

Employment  Exchanges  (Compulsory  Notification  of

Vacancies) Act, 1959 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.

41) This  Court  in  Union  of  India  &  Anr.  v.  Raghuwar  Pal

Singh15 was examining a case, where the appointment letter

came  to  be  issued  without  approval  of  the  competent

authority, then whether such appointment letter issued to the

respondent, would be a case of nullity or a mere irregularity?

If it is a case of nullity, affording opportunity to the incumbent

13  (2007) 8 SCC 249 14  (2009) 5 SCC 65 15  (2018) 15 SCC 463

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would be a mere formality and non-grant of opportunity may

not vitiate the final  decision of  termination of  his  services.

This  Court  held  that  in  absence  of  prior  approval  of  the

competent  authority,  the  Director  Incharge could  not  have

hastened  issuance  of  the  appointment  letter.  The  act  of

commission  and  omission  of  the  Director  Incharge  would,

therefore, suffer from the vice of lack of authority and nullity

in law.

42) In  Nidhi  Kaim & Anr.  v.  State  of  Madhya  Pradesh &

Ors.16,  a three Judge Bench was dealing with admission of

students to MBBS Course on the basis of illegal and unfair

admission process.  The Court held as under:

“92.  …Having  given  our  thoughtful consideration  to  the  above  submission,  we are  of  the  considered  view  that  conferring rights or benefits on the appellants, who had consciously participated in a well thought out, and  meticulously  orchestrated  plan,  to circumvent well laid down norms, for gaining admission to the MBBS course, would amount to  espousing  the  cause  of  “the  unfair”.  It would seem like allowing a thief to retain the stolen property. It would seem as if the Court was not supportive of the cause of those who had  adopted  and  followed  rightful  means. Such a course would cause people to question the credibility  of  the justice-delivery system itself.  The  exercise  of  jurisdiction  in  the manner suggested on behalf of the appellants would  surely  depict  the  Court's  support  in favour  of  the  sacrilegious.  It  would  also compromise  the  integrity  of  the  academic community.  We  are  of  the  view that  in  the name  of  doing  complete  justice  it  is  not

16  (2017) 4 SCC 1

36

possible for this Court to support the vitiated actions of the appellants through which they gained admission to the MBBS course.

xx xx xx

94.  …Even  in  situations  where  a  juvenile indulges in crime, he has to face trial, and is subjected  to  the  postulated  statutory consequences.  Law,  has  consequences.  And the consequences of law brook no exception. The  appellants  in  this  case,  irrespective  of their  age,  were  conscious  of  the  regular process  of  admission.  They  breached  the same  by  devious  means.  They  must therefore,  suffer  the  consequences  of  their actions. It is not the first time that admissions obtained  by  deceitful  means  would  be cancelled.  This  Court  has  consistently annulled  academic  gains  arising  out  of wrongful  admissions.  Acceptance  of  the prayer  made  by  the  appellants  on  the parameter suggested by them would result in overlooking  the  large  number  of  judgments on the point. Adoption of a different course, for  the  appellants,  would  trivialise  the declared  legal  position.  Reference  in  this behalf may be made to the judgments relied upon  by  the  learned  counsel  representing Vyapam.

xx xx xx

xx xx xx

108.  …In the facts and circumstances of the case  in  hand,  it  would  not  be  proper  to legitimise the admission of the appellants to the MBBS course in exercise of the jurisdiction vested in this Court under Article 142 of the Constitution.  We,  therefore,  hereby  decline the  above  prayer  made  on  behalf  of  the appellants.”

43) In  another three Judge Bench judgment in  Chairman and

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Managing Director, Food Corporation of India & Ors. v.

Jagdish Balaram Bahira & Ors.17, the Court was examining

the consequences of false caste certificate produced to seek

appointment. The Court held as under:

“69.  For these reasons, we hold and declare that:

xx xx xx

69.3   The  decisions  of  this  Court  in R. Vishwanatha  Pillai [R.  Vishwanatha Pillai v. State  of  Kerala,  (2004)  2  SCC 105 : 2004 SCC (L&S) 350] and in Dattatray [Union of  India v. Dattatray,  (2008)  4  SCC  612  : (2008) 2 SCC (L&S) 6] which were rendered by  Benches  of  three  Judges  laid  down  the principle  of  law  that  where  a  benefit  is secured  by  an  individual-such  as  an appointment  to  a  post  or  admission  to  an educational institution—on the basis that the candidate belongs to a reserved category for which the benefit is reserved, the invalidation of the caste or tribe claim upon verification would  result  in  the  appointment  or,  as  the case may be, the admission being rendered void or non est.

xx xx xx

69.7  Withdrawal of benefits secured on the basis of a caste claim which has been found to be false and is invalidated is a necessary consequence  which  flows  from  the invalidation of the caste claim and no issue of retrospectivity would arise;”

44) In view of the aforesaid judgments, it cannot be said that the

appointment of the employees in the present set of appeals

17  (2017) 8 SCC 670

38

were irregular appointments.  Such appointments are illegal

appointment in terms of the ratio of Supreme Court judgment

in Uma Devi. As such appointments were made without any

sanctioned  post,  without  any  advertisement  giving

opportunity to all eligible candidates to apply and seek public

employment and without  any method of  recruitment.  Such

appointments were backdoor entries, an act of nepotism and

favoritism and  thus  from any  judicial  standards  cannot  be

said to be irregular appointments but are illegal appointments

in wholly arbitrary process.

45) In light of the above discussion, we find that the order dated

July 12, 2011 or other similar orders passed by the High Court

cannot  be sustained in  law and,  thus,  are set  aside.   The

appeals filed by the State are allowed.   

46) We do not find any error in the order of the High Court dated

September 24, 2014, and, therefore, the appeals filed by the

candidates against such order are dismissed.  The pending

applications, if any, shall stand disposed of.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; OCTOBER 17, 2019.

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