ARUN KUMAR ROUT AND ORS.versusSTA TE OF BIHAR AND ORS.

                                                                                    •'
A                     ARUN KUMAR ROUT AND ORS.
                                   v.
                       STA TE OF BIHAR AND ORS.

                             NOVEMBER 20, 1997

B                   (G.N. RAY AND S.P. BHARUCHA, JJ.)


           Service law-Appointment on daily wages-Regularisation-
    Subsequent termination ofservices-Validity of-Government of Bihar-Health
    Department-Appointment of appellants on daily wages-Appointment
C   regularised subsequently-Thereafter services of the appellants terminated-     '·
    Ground that appointments were made without following due procedure-
    Writ preferred by appellants dismissed by High Court-Hence appeal before
    this Court-Held, the appellants had not been appointed by following the
    due procedure and therefore they cannot claim regularisation as a matter of
    course-But considering the fact that (i) they had satisfactorily served the
D   department even without getting any salary for a long; (ii) they were not
    guilty of any fraud or sharp practice; (iii) they did not lack in requisite
    qualification and (iv) they had been appointed against sanctioned posts, the
    appellants deserve sympathetic consideration-Direction that 50 per cent of
    the sanctioned posts which were held by these appellants should be filled
E   from amongst the appellants on the basis of their inter se merit position by
    taking into account their academic qualifications by waiving question of age
    bar if any and usual procedures for such appointment-The remaining 50 per
    cent of the said sanctioned posts, will be filled up on regular basis by
     throwing it open to the members of the public and following the procedure
    prescribed for such appointment-The remaining appellants who will not be
F    absorbed against 50 per cent of the said sanctioned posts will be entitled
     to compete for appointment along with other eligible candidates but they
     will not be treated unsuitable on account of age bar-They will be given a
     credit of 25 per cent marks for the experience they have gained-This order
     being confined to the special facts of this case is not to be treated as a
    precedent.
G
          CIVIL APPELLATE JURISDICTION : Civil Appeal No.8336 of 1997.

         From the Judgment and Order dated 23.9.94 of the Patna High Court in
    C.W.J.C. No. 13043of1993.

          Shanti Bhushan, Jayant Bhushan and (M.C. Dhingra) for the Appellants.
                                                                                        ...
H                                       314
                                                                                        il
                                                                                        ~
                               ARUN KUMAR ROUT v. STATE                       315
             B.B. Singh for the Respondents.                                        A
             The following Order of the Court was delivered :

             L_eave granted.

               Heard learned counsel for the parties. This appeal is directed against
        the order dated 23.9.1994 passed by the Patna High Court in CWJC No. 13043 B
        of 1993. The writ petition filed by the appellants, 20 in number, claiming
        regularisation in the Health Department of the Government of Bihar was
        dismissed by the impugned judgment All the said 20 appellants were appointed
        on 1st of January 1980 by the Civil Surgeon, Dumka in Class III and Class IV
        posts as daily wager. On 30th March 1989 the appointments of the appellants C
       were regularised on the recommendation of the Appointment Committee. On
       25.8.1993 the District Level Establishment Committee issued show cause notices
       to the appellants asking them to show cause why their appointments should
       not be cancelled in view of the fact that they got irregular appointmentts
        Ultimately on 14.10.93 the services of the appellants were terminated. It has
       been found as a matter of fact that at the time of initial appointment, no D
       advertisement had been given and the names of these appellants were also
       not sponsored by the Employment Exchange. There is, however, no dispute
       that they are not lacking in requisite qualifications for appointment to the
       respective posts in Class Ill or Class IV. There is also nothing on record to
       suggest that in obtaining the said appointments the appellants were guilty of E
       any fraud or privy to any irregularity Although in the matter of getting
       appointment in the Governinent service, the procedure required to be followed
       for such appointment cannot be bye-passed and ifthe initial appointment was
       illegal on account of not following the procedure for appointment, the
       incumbent obtaining appointment without following due procedure cannot
       claim as a matter of right to be regularised. This Court however has looked F
       with sympathy when question of regularisation came for consideration in
       cases of temporary or adhoc appointments, even made improperly if the
       incumbents had been allowed to continue for a long time because of the
       human problem involved in such continued service. In the instant case, all
       the appellants after getting appointments continued for more than five years G
       and it also appears ~rom the records of the case that they got salary initially
       for a few months and thereafter continued in service without getting any
       salary whatsoever from 1989 up to some period of 1992. Thereafter the salary
       had been paid to them until the services were terminated. It may be stated
       that there is nothing on record to suggest that the service renderd by the
       appellants was otherwise unsatisfactory. It may also be stated that such H
:::l
   '
    316                      SUPREME COURT REPORTS [1997) SUPP. 5 S.C.R.

A salaries had been paid to these appellants after a departmental inquiry indicating
  that even though there were irregularities in the appointment but the appellants
  had requisite qualifications for the respective post to which they were
  appointed. Although the appellants had not been appointed by following the
  due procedure and therefore, they cannot claim regularisation as a matter of
B course but considering the fact that they had satisfactorily served the
  department even without geting any salary for a long time and they were not
  guilty of any fraud or sharp practice and also did not lack in requisite
  qualification and they had been appointed against sanctioned post, we feel
  that the appellants deserve sympathetic consideration in getting appointment
  against such sanctioned posts on humane consideration. Considering the
C special facts of this appeal it appears to us that it will be just and proper
  consistent with ends of justice to direct that 50 per cent of the sanctioned
   posts which were held by these appellants should be filled from amongst the
   appellants on the basis of their inter se merit position by taking into account
  their academic qualifications by waiving question of age bar if any and usual
   procedures for such appointment. The remaining 50 per cent of tl]e said
D sanctioned posts, will be filled up on regular basis by throwing it open to the
   members of the public and following the procedure prescribed for such
   appointment in the State of Bihar. The remaining appellants who will not be
   absorbed against 50 per cent of the said sanctioned posts will be entitled to
   compete for appointment in the balance 50 per cent posts along with other
E eligible candiates but they will not be treated unsuitable on account of age
   bar. On the contrary, in the matter of assessment of merit they will be given
   a credit of 25 per cent marks for the exprience they have gained for services
   rendered by them for the said long period of 5 years or more. These directions
   are given on consideration of the special facts of this case and this order
   being confined to the special facts of this case is not to be treated as a
F precedent. The appeal is accordingly disposed of without any order as to
   costs. We reasonably expect that the concerned authorities will make the
   exercise as early as practicable for filling up the vacant sanctioned posts
   preferably within a period of six months from today.

     T.NA.                                                    Appeal disposed of