Supreme Court of India
ASHWANI KUMAR AND ORS. ETC.versusSTATE OF BIHAR AND ORS.
- Citation
- 1996 INSC 1487
- Decided
- 16 December 1996
- Disposal
- Dismissed
- Bench
- A M AHMADI
Holding
The appointments of the 6,000 Class III and IV employees were illegal and void as they exceeded the 2,250 sanctioned posts and lacked budgetary sanction, rendering any regularisation untenable and upholding the termination orders.
Summary
The Bihar government’s Tuberculosis Eradication Scheme, part of the 20‑Point Programme, required recruitment for 2,250 Class III and IV posts. Deputy Director Dr. A.A. Mallick, as Chairman of the Selection Committee, appointed about 6,000 persons without written orders, exceeding the sanctioned vacancies and without budgetary sanction. The High Court cancelled the appointments and the State upheld the cancellation. The Supreme Court examined whether the appointments were legal, whether regularisation was permissible, and whether natural‑justice principles were breached. It held that the appointments were ex facie illegal, void, and could not be regularised because they were made against non‑existent vacancies and without financial sanction. Consequently, the termination orders were valid. However, the Court directed the State to conduct a fresh recruitment exercise for the sanctioned posts and to give the former appointees a chance to compete, with appropriate weightage for service and training, but without seniority benefits. The appeals were dismissed.
Issues considered
- Whether the appointments of Class III and Class IV employees under the Tuberculosis Eradication Scheme were legal and valid.
- Whether the subsequent confirmation/regularisation of those employees was legally justified.
- Whether principles of natural justice were violated in terminating the services of the appointees.
- What relief, if any, could be granted to the appellants.
Subjects
service lawrecruitmentplanned expenditurebudgetary sanctionregularisationnatural justicetuberculosis eradication schemeillegal appointmentsconstitutional lawArticles 14Article 16Article 21
Judgment
A ASHWANI KUMAR AND ORS. ETC.
·•
v.
STATE OF BIHAR AND ORS.
DECEMBER 16, 1996
B
[AM. AHMADI, CJ., S.B. MAJMUDAR AND
SUJATA V. MANOHAR, JJ.]
Service Law-Recrnitment-Planned Expenditure-Budgetary sanction
is a sine qua non-Appointments dehors budgetary sanction and on non-ex-
c isting vacancy-Held, unauthorised and illegaf-Tuberculosis Eradication
Scheme-Appointment of 6000 em]Myees against sanctioned posts of
225D-Breach of procedure of recrnitment-All appointments held un-
authorised and illegal-Claim of regularisatiort-Held, unsustainable.
D Tennination of Services-Natural Justice-Principles of-Compliance
with.
Eradication of Tuberculosis was taken up as a part of 20 Point
Programme in planned ~enditure; The then D.eputy Director, Health
Department of the Government of Bihar, in-charge of Tuberculosis for a
E number of years, was made the Deputy Director of the Scheme and the
Chairman of Selection Committee constituted by the Government, to
recruit 2250 Class III and Class IV employees on posts created to imple-
ment the Scheme. About 6000 persons were appointed by the Chairman
without any written orders. He directed many of them to be adjusted by
F transfer by District Medical Officers and shuffled their payment of
salaries by turns. Regularisation of many of such persons including most
of the appellants was made. When petitions under Article 226 of the
Constitution seeking payment of salaries were made, an Enquiry Commit-
tee was constituted to find out whether the appointments made were valid
and whether salaries could be paid .to such employees. The Vigilance
G Department appointed to enquire into the matter reported that the Chair-
man had violated the rules of recruitment. Pursuant to the direction of the /'"
~ .
High Court, a Screening Committee was constituted which found that the
initial appointments made were in violation of the instructions issued by
the Government and that the Chairman, appointing authority circum-
H vented the rules by making a,djustment by transfer without verifying the
120
ASHWANIKR. v. STAIB 121
qualifications, eligibility or disclosing previous places whereat the can- .A
didates appointed had worked etc. etc. Relying on the report, all the
appointments were cancelled. When their legality was questioned in the
Writ Petitions, the High Court upheld the Government action. Hence these
appeals by special leave.
This group of appeals was heard by the Division Bench of this Court.
B
There arose a difference of opinion between the two Judges. K. Ramas-
wamy, J. confirming the order of the High Court held that even though it
l'
was open to the Government to create posts or to fill up the posts
independently ofexistence of any law or statutory rules, the said exercise
had to be consistent with the rights guaranteed under Articles 14 and 16(1) C
of the Constitution of India; that when planned expenditure is i:equired to
be spent, budgetary sanction is mandatory and in the present case when
some of the employees were sent for one month's training, posts were
created and budgetory sanction was obtained thereby abusing the absolute
power, the Chairman afpointed 6000 persons at his whim and wagery; that D
procedure for appointment to Class III and Class IV posts was given a go
by and instead casual appointments were made without any letter of
appointment to fill up even non-existing vacancies; that existence of post
or vacancy was a sine qua non for making appointments to such existing
posts or vacancies available, the recruitment made to these posts was
patently illegal and without authority of law; that when initial appoint- E
ments were in violation or in negation of the rules or when there were no
orders for appointment, to confer permanency of appointment to sucll
posts by regularisation in violation of the executive instructions or rules
was itself subversive of the procedure and, therefore it was futile to issue
writs as prayed for. F
Hansaria, J. quashed the termination orders qua the appellants,
holding that for the purpose of recruiting Class III and Class IV employees
in the 20 Point Programme the procedure prescribed by the Office
Memorandum dated 3.2.1980 was.not required to be followed and that even
though the Chairman was not justified in giving· direct appointment to G
about 6000 persons when there were oniy 2500 sanctioned posts, all° the
persons so employed had not abetted, aided or instigated the Chairman in
.. doing so, and, therefore, even though a wrong doer or a sinner has to be
punished and also those who aid, abet or instigate them but not those
regarding whom only a doubt existed and that about 2500 persons.could H
122 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A have been appointed by the Chairman and as there was material on record
to show that regular appointments had also been made and as it was not
possible to know who the regularly appointed persons were, the appellants,
whose number was 1363, might be among those who were regularly ap-
pointed and as it was doubtful whether these 1363 appellants could be said
B to have been irregularly appointed, termination orders qua them were
required to be set aside.
On account of this difference of opinion between the two judges,
these appeals had been placed before the larger bench.
C The appellants submitted that the Deputy Director, Health Depart-
ment of the Government of Bihar having been made the Chairman of
Selection Committee was duly empowered to appoint Class III and Class
IV employees on the programme and looking to the urgency of the
programme the appointments had to be made on a war footing and that
D was how 6000 appointments were made by him in due exercise of his
authority and these posts not being born on any regular cadre in the State
service, the detailed method of recruitment for filling up vacancies for such
a programme was not required to be followed; that these appointments on
ad-hoc basis were ultimately duly approved by the State when the Commit-
tee constituted for the purpose had found them to be valid and accordingly
E the employees were regularised and thereafter it was not open to the State
to nullify these appointments and all the 6000 appointments could not have
been invalidated in a wholesale manner which was contrary to the basic
principles of natural justice; that for no fault of theirs these employees
who had continued for more then 10 years service in many cases and who
F were even subsequently promoted could not have been removed and hence
on the principle of fairness, equity and even invoking mercy jurisdiction
of the Court they should have been continued in service.
The respondent State submitted that all the initial appointments, on
ad hoc or daily rated basis made by the Chairman, Selection Committee
G were patently unauthorised and illegal, being more than the sanctioned
posts and made in violation of the established procedure for recruitment;
that the appointments were not backed up by financial budgets, they were
totally unauthorised and could not have been countenanced at all and,
therefore, their Regularisation was wholly arbitrary, null and void and of
H no legal effect and as there was no material to show who could be fitted in
ASHWANIKR. v. STATE 123
against the sanctioned posts the State was justified to set aside all these A
appointments; that there was no violation of principles of natural justice
as public notices were given inviting such employees to put forward their
cases and there was no question of tempering justice with mercy as all
these incumbents were illegally appointed.
The points raised for determination were (i) Whether the appoint-
B
ments of the Class III and Class IV employees on the Tuberculosis
Eradication Scheme as a part of 20-Point Programme were legal and valid;
(ii) Whether the confirmation of these employees was legally justified; (iii)
Whether principles of. natural justice were violated while terminating
services of all these 6000 employees appointed (iv) What relief, if any, could C
be granted to the appellants.
Disposing of the appeals, this Court
!
HELD : 1.1. Eradication of tuberculosis was taken up as a part of D
20-Point Programme under the Planned Expenditure. Director, Tuber·
culosis Centre at Patna was made Chairman of the Selection Committee,
entrusted with the task of recruiting 2250 Class III and Class IV
employees. The budgeted expenditure for recruitment of. 2250 employees
on these sanctioned posts was a planned expenditure. The committee
appointed approximately ~000 persons on the sanctioned 2250 posts. E
Under these circumstances their initial entry must be held to be totally
unauthorised, incompentent and void. When these recruitments were not
supported by any budgetary grants there will be no occasion to make
available finances to meet-their salary expenses. These 6000 employees
were recruited completely vi'plating the established norms and procedures F
of recruiting Class III and Class IV employees as laid down by the State
Government from time to time. All these recruitments made were ar·
bitrary, capricious and were null and void. Such recruitment in Public
Services could not have been effected in such a cavaliar fashion. Even if
the recruitment was in a Government Scheme under 20-Point Programme G
it was to be carried out as per planned expenditure. When planned
expenditure is required to be incurred, budgetary sanction is a sine qua
non. The Government Orders concerning recruitment to Class III and IV
employees were not followed while recruiting ad hoc/daily wage employees
at the b1itial stage. The Govt. Resolution of 253.1983 stating that in
supersession of all the previous orders, the State Government had decided H
124 SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
A to constitute Selection Committee under the T.B. Programme, had to be
read along with the Government Orders dated 3.12.1980 and not dehors
them. The supersession of the previous orders as contemplated by the
Resolution was only to the limited extent that the Selection Committee
mentioned in the Resolution will be the Committee for appointing such
B persons on the concerned programmes and to that extent the recruiting
authority as mentioned in the l!arlier Government Orders would stand
superseded but it did nothing more than that. The procedure for recruit·
ment, however, would remain the same even for the newly constit_uted
Selection Committee. It is axiomatic that unless there is vacancy there is
no question of filling it up. There cannot be an employee without a vacancy
C or post available on which he can work and can be paid as per the
budgetary sanctions. In the instant case, the State authorities were jus·
tified in refusing to release salaries for paying this unauthorised army of
staff. They were all persoa non grata and were not employees in the real
sense of the term. The appointments of 6000 employees as made in the
D Tuberculosis Eradication Scheme were ex facie illegal. As they were con·
trary to all recognised recruitment procedures and were highly ai:bitrary,
they were not binding on the State. [139-B-H; 140-A-C; 141-H; 142-B; E-H]
1.2. Question of confirmation or regularisation of an irregularly ap·
pointed candidate would arise ifthe concerned candidate is appointed in an
E irregular manner or on ad hoc basis against an available vacancy which is
already sanctioned. But if the initial entry itself is unauthrised and is not
against any sanctioned vacancy question of regularising the incumbent on
such a non-existing vacancy would never survive for ~onsideration and even
if such purported regularisation or confirmation is given it would be an
p exercise in futility. Under these circumstances there was no occasion to
regularise them or to give them valid confirmation. The so-called exercise of
confirming these employees, therefore, remained a nullity. Any posting
which is dehors the budgetary grant and on a non-existing vacancy would be
outside the sanctioned scheme and would remain totally unauthorised. No
right would accrue to the incumbent of such an imaginary or shadow
G vacancy. Question of regularisation in any service including any Govern·
ment 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
the time to time and if it is found that the concerned incumbents have
H continued to be employed for a long period of time with or without any
ASHWANIKR. v. STATE 125
artificial breaks, and their services are otherwise required by the institutio~ A
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 concerned employees can give their
best by being assured security of tenure. But this would. require a pre-con-
dition that the inital entry of such an employee must be made against an B
available sanctioned vacancy by following the rules and regulations govern-
ing such entry. The second type of situation in which the question of
regularisation may arise would be when the inital entry of the employee
against an available vacancy is found to have suffered from some flaw in the
procedural exercise though the person appointing is competent to effect
such initial recruitment and has otherwise followed due procedure for such C
recruitment. A need may then arise in the light of the exigency of ad-
ministrative required for waiving such irregularity in the initial appoint-
ment by competent authority and the irregular initial appointment may be
regularised and security of tenure may be made available to the concerned
incumbent. But even in such a case the initial entry must not be found to be D
totally illegal or in blatant disregard of all the established rules and regula-
tions 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 fa rw vacancy on which E
such an initial entry of the candidate could ever be effed£d. Suell 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 by. The appel-
lants fell in this latter class of cases. They had no case for regularisation F
and whatever purported regularisation was effected in their favour
remained an exercise in futility. Even though some training was given under
the direttion of the Government to certain candidates the recruitment
made being in excess of the available vacancies would still remain un-
authorised and illegal. Even after training when recruitment is to be made
it must be made on available vacancies or sanctioned posts under the G
Scheme and that too after following due procedure of recruitment. That was
never done. [143-B-D; 144-B-H; 145-A-B; 147-C-D]
1.3. Principals of natural justice cannot be subjected to any straight
jacket formula. They will vary from. case to case, from circumstance to H
126 SUPREME COURT REPORTS[l996) SUPP. 10 S.C.R.
A circumstance and from situation to situation. The basic principles of
natural justice cannot be said to have been violated by the Committee
which ultimately took decision on the basis of the personal hearing given
to the concerned employees and after considering what they had to say
regarding their appointments. Whatever was submitted by the concerned
B employees was taken into consideration and then the committee came to a
firm decision to the effect that all these appointments made were vitiated
from the inception and were required to be set aside and that was how the
impugned termination orders were passed against the appellants. On the
facts of these cases, therefore, it could not be said that principles of natural
justice were violated or full opportunity was not given to the concerned
C employees to have their say in the matter before their appointments were
recalled and terminated. (148-E; 150-F-H; 151-A]
1.4. When 6000 appointees were found to have been illegally loaded
on the State exchequer and when there were only 2250 sanctioned posts, in
D the absence of clear data as to who were the senior most and which were
the sanctioned posts available at the relevant time aga~nst which they could
be fitted it would be impossible to undertake even a jettisoning operation
to offioad the removable load of excess employees amounting to 3750 by
resorting to any judicial surgery. Once the source of their recruitment was
found to be tainted all of them had to go. (151-C-D]
E
1.5. These 6000 employees were got employed over at least a decade.
Many of them served for number of years and got confirmed. Forno fault of
theirs they found themselves stranded in life midstream. Many might have
got overaged. Many of them also got trained under the second phase of the
F Programme. Under these circumstances justice would require that some
effort to salvage their situation if possible may be made when the State
under-takes a fresh exercise to fill up the sanctioned posts under the
Tuberculosis Eradication Programme which had come to stay. Tuber-
culosis is still not eradicated in the State of Bihar and the Programme is to
last for couple of more years and may be it may assume a semi-permanent
G status. There are 2250 sanctioned posts or it may be that some more
sanctioned posts may see the light of the day in the near future. It would be
appropriate to direct the State to undertake that exercise at the earliest and
while doing so after following the due procedure of recruitment and the
rules governing the same, give an opportunity to these 6000 unfortunate
H creatures to compete for the said posts in the future recruitment that may
ASHWANIKR v. STAIB[S.B.MAJMUDAR,J.] U7
be undertaken by the State and in the process because of the experience A
which they have gathered in their past service under the Tuberculosis
Programme and the training which they might have received pursuant to
the Government Order dated 31.7.1987, due weightage also be given to them
while considering their eligibility for being recruited in service as and when
such future exercise is undertaken. If no statutory body composed of high- B
ranked officials for recruitment to Class III and Class IV employees is in
vogue, the State is directed to constitute a committee consisting of three
members, viz., (a) a .member of the Public Service Commission; (b) a senior
IAS officer, i.e., the Additional or Joint Secretary of the Health Department;
and (c) a senior officer, i.e., the Director or Additional Director of Health
Services, to select the candidates. The Additional or Joint Secretary of ·C
Health Department shall be the Chairman of the Committee. The respon·
dent-State will constitute such a committee preferably within three months
of receipt of this order. It would be open to all the appellants or those
appointed under the Scheme who might not have challenged their termina-
tion orders before any competent court uptil now, to apply for selection to D
the concerned _Class III and Class IV posts. The committee would in their
cases as first step, verify and satisfy itself of the credentials of such can-
didates. The committee may fix total number of marks to be obtained by the
candidates for being tre1,tted to have passed the selection test. The commit-
tee if satisfied about the credentials and other particulars of the appellants
or those appointed under the Scheme may allot additional marks to them E
for each of the three years and more for which they might have worked, at
the rate of 2 marks for each completed year of continuous working, upto a
maximum of 6 marks, for each candidate. Candidates appointed who are
found to have undertaken training pursuant to the Government direction
dated 31.1.1987 may be awarded 2 additional marks for the training so F
received. Those 2 marks will be in addition to the .6 marks which are to be
awarded on completion of meritorious and honest service by the concerned
employees. If the concerned candidates who were earlier appointed are
found by the committee to be otherwise eligible for being appointed to Class
III and IV posts as per the relevant rules and regulations and if on the basis G
of the marks allotted to them as aforesaid they become eligible to be
appointed besides other competing candidates, then if they are found to
have become age barred the condition of age for recruitment of such can·
didates should be relaxed appropriately so as to entitle such candidates to
be considered for selection. The committee shall select all candidates on
· merits following the prescribed procedure in the appropriate circulars and H
128 SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A rules and shall also follow the rules of reservation as in vogue and prepare
the merit list and should submit it to the Government. In the event of
selection and appointment of erstwhile daily-rated employee or employees,
who were inducted under the scheme the entire proved period during which
they had worked as daily wager and/or confirmed employees will be com·
B puted for the purpose of pensionary and other retiral benefits but they will
not be entitled to claim any inter se higher seniority in the selection made by
the committee or for any promotion on the basis of their previous service.
[152-C·H; 153-A; E-H; 154-B·G; 155-C·D]
H.C. Puttaswamy & Ors. v. The Hon'ble Chief Justice of Kamataka
C High Court, Bangalore & Ors., JT (1990) 4 SC 474 and Jacob M.
Puthuparambil & Ors. Etc. Etc., [1991] 1 SCC 28, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 10758-59
of 1995 Etc.
D From the Judgment and Order dated 6.5.94 of the Patna High Court
in C.W.J.C. No. 5163 and 7527 of 1993.
Dr. Rajeev Dhavan, Gopal Singh, A. Sharan, Imtiaz Ahmed, E.C.
Vidyasagar, K.D. Prasad, A.N. Bardiyar, LN. Jha, A.K. Jha, Jayant
Bhushan, S.K. Sinha, P.P. Tripathi, Ejaz Maqbool, K.K. Gupta, A.K.
E Pandey, R.K. Singh, Ranjit Kumar, lrshad Ahmad, R.P. Singh, (Sumant
Bhardwaj) for Ms. Mridula Ray Bhardwaj, U.S. Prasad, B.B. Singh and
A.P. Medh for the appearing parties.
The Judgment of the Court was delivered by
F S.B. MAJMUDAR, J. : Leave granted in S.L.P. (C) Nos. 6174of1992,
14275' of 1994, 7410 of 1995 and S.L.P. (C) No. 24553 (CC 4638/95).
This group of appeals, on grant of special leave to appeal against the
common judgment of Patna High Court in CWJC No. 5163 of 1993 and
G batch decided on 6th May 1994, has been placed before this larger Bench
by the orders of Hon'ble the. Chief Justice on account of difference of
opinion between two learned judges of this Court, K. Ramaswamy, J. and
Hansaria, J., constituting the Division Bench which earlier heard this group
of matters. Before the main points for difference are highlighted and the
contentions of respective contesting parties are noted, it would be neces-
H sary to note at the outset the backdrop facts leading to these proceedings.
ASHWANIKR. v. STATE(S.B.MAJMUDAR,J.] 129
Backdrop Facts A
One Dr .. A.A. Mallick, Deputy Director, Health Department of the
Government of Bihar, was.in charge of Tuberculosis for a number of years
while he was working as a member of the medical service of the State of
Bihar. He was Director of the Tuberculosis Centre at Patna. Eradication B
of Tuberculosis was taken up as a part of 20-Point Programme in planned
expenditure. The activities in the Tuberculosis Centre at Patna were ex-
tended to various districts. Since Dr. Mallick happened to be the Director
of the Centre, he was made Deputy Director of the Scheme. The Govern-
ment has also issued directions to the District Medical Officer to abide by
the instructions of Dr. Mallick in implementation of the programme. He C
was made the Chairman of Selection Committee constituted by the
Government consisting of himself, Assistant Director of Pilaria and a
senior officer representing Scheduled Castes/Scheduled Tribes to recruit
2250 Class III and Class IV employees on posts created to implement the
Scheme in addition to around 800 to 900 staff in Patna Centre in all D
categories. Taking advantage thereof, the undisputed fact is that, he ap-
pointed around 6000 (as found by the Committee) while the Government
asserts them to be approximately 7000. Be that as it may, not less than 6000
person~ were appointed by Dr. Mallick without any written orders. _He
directed many of them to be adjusted by transfer by District Medical
Officers and some of them had produced fabricated appointment orders. E
He shuffled their payment of salaries by turns. Another device adopted in
the macabre episode was to make the employees go on strike and when
some sensitive M.L.As. raised the question, on the floor of the State
Legislative Assembly, of illegal appointments made by Dr. Mallick, the
Government initially posed the appointments to be legal and justified his p
action to be valid. Later, when facts themselves proved their faulty admis-
sion, they made amends before the Assembly and the Government made
an elaborate statement apprising the House that the information furnished
earlier was not correct.
Due to the agitation, the Director and Joint Section to the Govern- G
ment, Health Department had issued directions to regularise the services
' of daily-rate Class III and Class IV employees. Taking aid thereof, it is
claimed that regularisation of many of them including most of the appel-
lants, was made. When alarming bells rang around portals of Patna High
Court by filing petitions under Article 226 of the Constitution seeking H
130 SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A payment of salaries, the High Court, though initially in some cases directed
to enquire into the cases and to pay salaries, later found if difficult to cope
up with the situation. So an Enquiry Committee was constituted to find out
whether the appointments made by Dr. Mallick were valid and whether
salaries could be paid to such employees.
B
In the meanwhile, the -Government also directed the Vigilance
Department to enquire into the matter and on 7th May 1991, the Vigilance
Department in its report pointed out that Dr. Mallick had violated the rules
of recruitment and in collusion with other officers had appointed daily-
rated Class III and Class IV employees. Pursuant to the direction of the
C High Court, a Screening Committee was constituted which sought to serve
notice on the employees. When the Deputy Director went to the Centre at
Patna to serve the notice on the employees, he was man-handled resulting
in an ugly law and order situation. In consequence, notices were published
on two different dates in different newspapers inviting submission of the
D claims by all the employees appointed by Dr. Mallick, together with sup-
porting material justifying their appointments. Different dates of hearing
by the Committee were staggered. About 987 employees appeared before
the Committee and submitted their statements. In the meanwhile, relevant
records were burnt out. The .High Power Committee in the absence of
authentic record was constrained to depend upon the statements made by
E the employees before it. After hearing them and considering the record
placed before it, the Committee found that Dr. Mallick did not make any
-
order of appointment on daily-wage basis by following due procedure. It
found it difficult to accept even the orders of confirmation. In that view,
the Committee found that the initial appointments made by Dr. Mallick
F were in violation of the instructions issued by the Government. Therefore,
they were found to be illegal appointments. The Committee also found that
Dr. Mallick circumvented the rules by making adjustment by transfer
without verifying the qualifications, eligibility or disclosing previous places
whereat the candidates appointed had worked and dates of their appoint-
ment and by transferring them to the respective places by cyclostyled
G orders. He directed the District Medical Officers to verify the credentials
and then to appoint them temporarily. The Committee also noted that the
third category was of persons who were appointed by producing fabricated
orders of appointment. Consequently, it directed to cancel all the appoint-
ments made by Dr. Mallick. On receipt of the report and on its considera-
H tion, the Government found them to be invalid and illegal and all the
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.) 131
--"! appointments were cancelled. When their legality was questioned in the A
writ petitions filed under Article 226, the High Court upheld the Govern-
ment action. Thus these appeals by special leave.
When this group of appeals was finally heard by the Division Bench
of this Court consisting of K. Ramaswamy, J. and Hansaria, J., as noted
earlier,. on hearing the arguments of learned counsel appearing for the B
contesting parties, there arose a difference of opinion between the two
learned judges, K. Ramaswamy, J., came to the following conclusions :
1. Even though it was open to the Government to create posts or to
fill up the posts independently of existence of any law or statutory rules c
made under the proviso to Article 309 of the Constitution to that effect,
the said exercise had to be consistent with the rights guaranteed under
Articles 14 and 16(1) of the Constitution of India.
2. When planned expenditure is required to be spent, budgetary
sanction is mandatory. In the present cases when some of the employees D
were sent for one month's training posts were created and budgetary
sanction was obtained. The cases at hand were unique and the device
adopted by Dr. Mallick was in flagrant violation of the norms of administra-
tive procedure known to law. He had given decent· burial to procedure
prescribed by the Government. Abusing the absolute power secured in his E
hands, he appointed 6000 persons at his whim and wagery.
-- 3. Procedure for appointment to Class III and Class IV posts was
given· a go-by. Instead causal appointments were made without any letters
of appointment to fill up even non-existing vacancies.
F
4. Existence of post or vacancy was a sine qua non foi making
appointments to such existing posts or vacancies and as there were no 6000
posts or vacancies available, the recruitment made by Dr. Mallick to these
posts was patently illegal and without authority of law.
5. When initial appointments were in violation or in negation of the G
rules or in other words when there were no orders for appointment there
~
--# would remain no question of regularisation of such initially illegal appoint-
ments. To confer permanency of appointment to the posts by regularisation
in violation of the executive instructions or rules is itself subversive of the
procedure. H
132 SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A 6. Without following due procedure prescribed under the circulars,
regularisation of services of daily-wage employees could not be effected.
7. Principles of natural justice were not required to be followed in
the present cases. Even otherwise there was due compliance with these
B principles.
8. As all the appointments were made in flagrant breach of the
procedure and the executive instructions and amounted to blatant abuse
of the centralised power held by Dr. Mallick and subversive .of discipline,
it was futile to issue writs as prayed for.
c
9. However Ramaswamy, J. was inclined to issue 11 directions in para
36 of his judgment for future recruitment of class III and IV employees in
the Tuberculosis Eradcation Programme, providing certain safeguards for
considering the feasibility of recruiting the present appellants on these
D posts.
In view of the aforesaid findings and conclusions K. Ramaswamy, J. was
inclined to dispose of the appeals by confirming, subject to the aforesaid
directions, the order of the High Court dismissing the writ petitions.
E On the other hand Hansaria, J., reached the following conclusions
and findings :
1. For the purpose of recruiting Class III and Class IV employees in
the 20-Point Programme the procedure prescribed by Office Memorandum
dated 3rd December 1980 was not required to be followed.
F
2. It could not be said that the procedure visualised by Office
Memorandum dated 3rd December 1980 was not followed at all regularis-
ing the appellants.
G 3. Non-advertisement of posts in newspapers did not cause any
infirmity to the regularisation.
4. Non-information to the Employment Exchange had caused no dent
to the appointments.
H 5. The question of illegality in appointment of general candidates on
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.] 133
;
the ground of non-reservation did not arise as the material showed that A
there was reservation of SC/ST candidates.
6. Material on record showed that in some cases regularisation was
in a pursuance of the recommendations of a properly constituted Selection
Committee.
B
7. Merit list/panel was prepared in some cases pursuant to O.M. of
3rd December 1980. But it could not be said that it was done in all cases.
However, there was no justification in finding infirmity in all the appoint-
ments because of lack of material on record.
c
8. Principles of natural justice were not fully complied with before
terminating the services of the appellants. However, that had no nullifying
effect so far as the present proceedings are concerned as they were heard
by this Court and consequently on that ground termination orders could
not be set aside.
D
9. Even though Dr. Mallick was not justified in giving direct appoint-
ment to about 6000 persons when there were only 2500 sanctioned posts,
all the persons so employed had not abetted, aided or instigated Dr.
Mallick in doing so, and, therefore, 'even though a wrong doer or a sinner
has to be punished and also those who aid, abet or instigate them but not E
those regarding whom only a doubt existed.
10. About 2500 persons could have been appointed by Dr. Mallick
and as there was material on record to show that regular appointments had
also been made (how many, we do not not know) and as it is not possible
F
to know who the regularly appointed persons were the appellants, whose
number is 1363, may be among those who were regularly appointed.
Consequently in view of the aforesaid findings Hansaria, J. was
inclined to hold that justice had to be tempered with mercy in the light of
Article 21 of the Constitution of India and as it was doubtful whether these G
1363 appellants could be said to have been irregularly appointed, termina-
~~
tion orders qua them were required to be set aside. It was made clear by
Hansaria, J., that the said order would not in any way be taken advantage
of except by the 1363 appellants before the Court. As noted earlier it is
this difference of opinion between the two learned judges constituting the H
134 SUPREME COURT REPORTS(1996] SUPP. 10 S.C.R.
A Division Bench, that has triggered off the present proceedings before this
larger Bench.
Rival Contentions
B Learned. counsel for the appellants vehemently submitted that there
was ample evidence on the record of these cases to show that Dr. Mallick
was the appointing authority and was duly empowered to appoint Class III
and Class IV employees on the programme regarding eradication of Tuber-
culosis which was taken up as a part of 20-Point Programme in the
Planned Expenditure by the State of Bihar. It was further contended that
C the Government Order of 3rd December 1980 did not apply to such
appointments. That looking to the urgency of the Programme the appoint-
ments had to be made on a war-footing and that is how 6000 appointments
were made by Dr. Mallick in due exercise of his authority so that Tuber-
culosis Eradication Programme could be put on an effective and strong
D footing. It was further submitted that these were not posts born on any
regular cadre in State Service and consequently the detailed method of
recruitment for filling up vacancies for such a Programme was not required
to be followed, It was next contended that Dr. Mallick had given due
importance to the policy of reservation as applied by the State while
E effecting these appointments. That in any case these appointments on ad-
hoc basis were ultimately duly approved by the State when the Committee
constituted for the purpose had found them to be valid and accordingly
the employees were regularised. That thereafter it was not open to the
State of Bihar to nullify these appointments by one stroke of pen. Even
that apart all the appointments effected by Dr. Mallick which were about
F 6000, could not have been invalidated in a wholesale manner which was
contrary to the basic principles of the natural justice. That the so-called
hearing given by the Committee even prior to its constitution could not be
said to be a hearing at all and hence termination orders were null and void.
It was ultimately submitted that for no fault of theirs these employees who
G had continued for more then 10 years in service in many cases and who
were even subsequently promoted could not have been removed wholesale
and hence on the principle of fairness equity and even invoking mercy .. -
jurisdiction of the Court they should have been continued in service. That,
if at all, they were victims at the hands of Dr. Mallick but could not be said
H to be abettors and should have been dealt with in a humanitariam manner.
ASHWANIKR. v. STATE(S.B.MAJMUDAR,J.] 135
It was contended that on the same lines on which this Court in the case of A
H.C. Puttaswarny & Ors. v. The Hon'ble Chief Justice of Karnataka High
Court, Bangalore & Ors., JT (1990) 4 SC 474 permitted the irregularly
appointed employees to continue on service without a break, the present
appellants also should be directed toj2e so continued in service after giving
them reinstatement with all consequential benefits. Dr. Dhavan, learned B
senior counsel appearing for the appellants in appeals which were earlier
.delinked from this group but which were subsequently placed along with
the group for disposal, namely, civil appeal arising out of S.L.P.(C) No.
14275of1994 and C.A. Nos. 10811-28 of 1995, submitted that 8 employees
in civil appeal arising out of S.L.P.(C) No. 14275 of 1994 were not ap- C
pointed by Dr. Mallick but were appointed by Dr. Mithilesh Kumar and,
therefore, their appointments stood on a separate footing and could not
have been nullified by adopting the general yardstick for voiding all the
appointments made by Dr. Mallick. So far as the Civil Appeals Nos.
10811-28of1995 were concerned Dr. Dhavan submitted that appointments D
made by Dr. Mallick were in two phases, the first phase was refl.ected by
the Government Order dated 25th March 1983 wherein Dr. Mallick had
appointed number of employees under the Scheme. But the second phase
started pursuant to the Government Order dated 31st January 1987
whereunder a programme was instituted for training Tuberculosis Atten-
dants and Tuberculosis Assistants and once they were given training such E
candidates became entitled to be appointed on tegular basis in this
Programme and as they had been so trained there was nothing wrong in
continuing them in service. Dr. Dhavan also submitted that the Tuber-
culosis Eradication Scheme under 20-Point Programme was entirely a
separate Scheme undertaken by the State of Bihar in collaboration with the F
. Central Government wherein the expenses for the infrastructure were to
be shared by the State Government as well as Central Government and
there was no question of any posts being created in the regular service of
_the State. Under these circumstances the rigour of the proc~dure of
recruitment to State service as laid down by the Notification of 3rd Decem- G
her 1980 could not be applied to fill up the vacancies on this Scheme.
Consequently no fault could be found with the manner of recruitment
adopted by Dr. Mallick especially when a Committee, duly constituted
under the Scheme by the State Government, had cleared these appoint-
ments and directed regularisation of these ad hoc employees as initially H
136 SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.
A appointed by Dr. Mallick. Dr. Dhavan further submitted that these posts
were sanctioned from time to time by State Government. That there was
nothing wrong with the regularisation of these employees and all of them
could not have been terminated by one stroke of pen contrary to all the
::
basic established principles of natural justice and fairplay. Ultimately it was
B contended that in any case by tempering justice with mercy these
employees who have now become age-barred should not be thrown out of
service after number of years when they had been recruited in service for
no fault of theirs. It was, therefore, submitted by Dr. Dhavan towing the
line of other learned advocates for the appellants that the appeals should
be allowed and all the prayers put forward in the writ petitions filed in the
c High Court should be granted. In the written submissions filed in Civil
Appeal Nos. 10813-10985 of 1995 it was submitted that the 20-Point
Programme announced by Government of India underscored the need for
eradicating the dreaded disease Tuberculosis (T.B.). In Bihar State alone
as per Government information in 1976 about half the population (current
D
population 10 crores) was striken with T.B. and the annual death toll was
feared to be in excess of 1 Lakh with 3 Lakh new cases reported every year.
It was in this background that the S.L.P. petitioners who numbered 581 -
were all appointed (initially ad-hoc/daily wagers) in Class III and Class IV
posts in connection with the T.B. Eradication Progranline in the State of
E Bihar from the year 1980 onwards and were regularised on various dates --
thereafter (p. 146-166-S.L.P. paper book). By the additional affidavit dated
4.9.1994 particulars of the petitioners, their dates of ad-hoc/daily-rated -·
appointments and their dates of regularisation, and (in many cases) sub-
sequent promotion have been set out (pages 146-169 S.L.P. paper book).
F It was submitted that the initial appointments and regularisation of these
employees were valid and proper. It was next submitted that by a letter
dated 25th March 1988 the Joint Secretary (Health) confirmed and ap-
pointed Dr. A.A. Mallick as ex-officio Chairman of the Selection Commit-
tee and by a directive dated 24th July 1984 the Joint Secretary had directed
G the said Dr. Mallick to regularise the appointments made by him and to
the same effect was the subsequent l~tter dated 17th October 1984 to the
Chairman, T.B. Hospital directing regularisation of the daily wagers. In
_,.
short similar contentions were sought to be raised in the written submis-
sions as were advanced by learned advocates appearing for other appel-
H !ants.
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.) 137
Shri Singh, learned counsel appearing for the respondent-State on A
the other hand submitted that all the initial appointments on ad hoc or
daily-rated basis made by Dr. Mallick were patently unauthorised and
illegal for the simple reason that though there were in all 2500 sanctioned
posts, Dr. Mallick for the reasons best known to him thought it fit to
appoint 6000 Class III and Class IV employees. He threw the established B..
procedure for recrui,tment of such employees to the winds and in a most
arbitrary manner adopting a policy of 'pick and choose' appointed these
persons. These appointment were not backed up by financial budgets. They
were totally unauthorised and could not have been countenanced at all. As
there was nothing to show as to who could be fitted in against the sanc-
tioned posts the State was justified on the recommendation of the Enquiry C
Committee to set aside all these appointments which were ex f acie contrary
to the established norms of recruitment. That as these appointments were
illegal and void from their inception there was no question of regularising
them and the so-called regularisation was wholly arbitrary, null and void
and of no legal effect. That ample opportunity was given to these D
employees to put forward their contention before the Committee. Public
notices were given inviting them to have their say by submitting all neces-
sary dates before the Committee. Not only that but even 987 persons did
appear before the Committee. Therefore, these was no question of viola-
tion of principles of natural justice. It was next contended by Shri Singh E
that there is no question of tempering justice with mercy as all these
incumbents were illegally appointed by Dr. Mallick and that it was impos-
sible to decide in the absence of relevant material or date on record as to
who were senior enough to be adjusted against the sanctioned 2500 posts
out of the 6000 employees. Hence the only solution to the problem was to F
nullify all the appointments and to start on a clean slate de novo. In
reference to the contentions of learned counsel for the appellants placing
reliance on decision of this Court in H.C. Puttaswamy (supra) it was
submitted that in that case the initial appointments by the Chief Justice of
Karnataka High Court were not illegal or unauthorised as the Chief Justice
had enough financial power to create any number of post on the High G
Court establishment. That what was voided was the method by which the
employees recruited on the High Court establishment were subsequently
transferred to the establishments of subordinate courts and under these
peculiar circumstances the appointees were permitted to continue in ser-
vice without break. That in the present case though Dr. Mallick was H
138 SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.
A authorised to recruit staff on the Tuberculosis Eradication Scheme, as
there were only 2500 sanctioned posts, the wholesale appointments of 6000
persons made by him were clearly illegal and an exercise in futility. It was
next contended that even though these posts may not be posts born on the
regular cadres in the State service they were certainly to be vacancies which
B were required to be supported by sufficient financial budgets and unless
there were vacancies covered by the planned expenditure budgeted for the
purpose, no such appointments could be effected. Under these circumstan-
ces such appointees who were illegal appointees from the very beginning
could not have been regularised. So far as the submissions of Dr. Dhavan
were concerned it was submitted that there were no two phases in which
C appointments made by Dr. Mallick. So far as he was concerned there was
only one phase of recruiting persons at his whims and fancies on vacancies
which did not really exist and whatever training was given to these
employees also remained an exercise in futility. So far as 8 employees
covered by Civil Appeal arising out of S.L.P. (C) No. 14275 of 1994 were
D concerned it was submitted that Dr. Mithilesh Kumar was also directed to
effect appointment under instructions of Dr. Mallick and hence their
appointments also stood on the same footing on which direct appointees
of Dr. Mallick stood and, therefore, suffered from the same vitiating
consequences. It was accordingly submitted by Shri Singh that the appeals
were required to be dismissed.
E
In the light of the aforesaid rival contentions the following points
arise for our determination :
Points for detennination
F 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.
G
3. Whether principles of natural justice were violated while terminat-
ing service of all these 6000 employees appointed by Dr. Mallick.
4. What relief, if any, can be granted to the appellants.
H We shall deal with these points seriatim.
ASHWANIKR v. STATE[S.B.MAJMUDAR,J.) 139
Point No. 1 A
So far as the initial appointments of 6000 Class III and Class IV
employees by Dr. Mallick are concerned it has to be kept in view that Dr.
Mallick was Director, Tuberculosis Centre at Patna. Eradication of tuber-
culosis was taken up as a part of 20-Point Programme under the Planned B
Expenditure. The activities of the Programme were extended to various
districts. It cannot be disputed that Dr. Mallick was the appointing
authority for these classes of employees who had to work on the Scheme.
He was duly made Chairman of the Selection Committee constituted by
the Bihar State Government. The Committee consisted of Dr. Mallick,
Assistant Director of Pilaria and a senior officer representing Scheduled C
Castes/Scheduled Tribes. This Committee was entrusted with the task of
recruiting 2250 Class III and Class IV employees. These posts were created
to implement the Scheme in addition to 800-900 staff in Patna Centre in
all categories. It goes without saying that the budgeted expenditure for
recruitment of 2250 employees on these sanctioned posts was a planned D
expenditure. A~ these were the only sanctioned posts under the Scheme it
passes one's comprehension as to how Dr. Mallick could persuade himself
to recruit 6000 employees on these 2250 sanctioned posts. Learned counsel
for the appellants in written submissions tried to urge that there were more
sanctioned posts while the learned counsel for the State of Bihar tried to
· assert that Dr. Mallick had appointed approximately 7000 persons. But as E
both the learned judges constituting the Division Bench, namely, K. Ramas-
wamy J. and Hansaria, J. proceeded on the accepted position on record
that Dr. Mallick unauthorisedly appointed 6000 employees on the sanc-
tioned 2250 posts we will proceed on that basis. It becom~s, therefore, clear
that at least 3750 employees were drafted in the Scheme by Dr. Mallick F
without there being any vacancies to receive them. Under these circumstan-
ces their initial entry must be held to be totally unauthorised, incompetent
and void. It is axiomatic that when these recruitments were not supported
by any budgetary grants there will be no occasion to make available
finances to meet their salary expenses. Even apart from that, Dr. Mallick
threw all the discretion to the winds, acted as monarch of what he surveyed G
and in a most arbitrary fashion adopting the principle of 'pick and choose',
recruited these 6000 employees completely violating the established norms
and procedures for recruiting Class III and Class IV employees as laid
down by the State Government from time to time. We agree with the
contention of Shri Singh, learned counsel for the respondent-State that all H
140 SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A these recruitments made by Dr. Mallick were arbitrary, capricious and
were null and void as he did violence to the established norms and
procedures for recruiting such employees. Dr. Mallick was not giving
appointments to these employees on his private establishment. He was
· recruiting them in a Government Programme which was supported by
B Planned Expenditure. Such recruitment to Public services could not have
been effected in such cavalier fashion in which it was done by Dr. Mallick.
We are not in a positi<;m to persuade ourselves to agree with the contention
of learned counsel fot the appellants that the Government Order of 3rd
December 1980 would not apply to these recruitments as this was a unique
and distinct Scheme under 20-Point Programme. Even if it was a scheme
C under 20-Point Programme it was to be carried out as per planned expen-
diture. It is obvious that when planned expenditure is required to be
incurred, budgetary sanction is a sine qua non. 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
D to law. In this connection we may profitably refer to Government Order
dated 3rd December 1980 which is found at page 344 of the Paper Book
in Civil Appeal Nos. 10758-59 of 1995. This Government Order deals with
the procedure of \ appointment to Class-3 Posts in Government offices.
There is a similar Government Order of even date for recruitment of
Class-4 services. That is annexed at page 352 in this very paper book. It is
E issued by the Department of Personnel and Administrative Reforms, Bihar
State. As this recruitment was done in a centralised manner at Patna for
different district under Tuberculosis Eradication Scheme to be carried out
in all the districts in a phased manner, we may refer only to that part of
this Government•Order which referred to the procedure to be adopted for
p recruitment in Secretariat Services at Patna. It has been in terms laid down
that in the Secretariat and its attached offices, a Selection Committee. shall
be constituted. It will be chaired by the head of the concerned estab-
lishment and one of the members of this Committee will be any senior
officer as nominated by the Head of the Establishment. Other members of
the Committee will be officers belonging to SC/ST working in the same
G department. As per this G.O. so far as recruitment to Class III posts is
concerned a merit list has to be prepared on the basis of marks obtained
by the candidates at school or college examinations and appointment to
the vacant posts will be made according to the instructions enclosed with
the concerned Resolution. The vacancies will have to be communicated to
H the nearest Employment Exchange of respondent areas wherein the con-
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.) 141
cerned offices exist. So far as G.O. concerning recruitment to Class IV A
servants is concerned, the Committee appointed for the purpose has to
publish the advertisement through the Employment Exchange as per the
direction contained in Appointment Department Circular No. 8160 dated
21st June 1966. Government instructions regarding reservation for SC/ST
also have to be adhered to. It is not in dispute that none of these instruc- B
tions 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. However, learned counsel for the
appellants vehemently submitted that these two Government Orders C
would not apply and what applied for these recruitments was the
Government Resolution dated 25th March 1983. It is found at page 404
of the paper book in these civil appeal. The said Resolution of the
Bihar Government the Health Department issued under the signature
of Joint Secretary to the Government shows that in supersession of all
the previous orders, the State Government had decided to constitute D
Selection Committee for regular appointment against the posts of
class III and Class IV under Malaria, Filaria and T.B.
Programme. The officers noted against their names would function as
Chairman and members. A mere look at this Resolution shows that it
indicates the appointing authorities who have to recruit staff on the con- E
cerned programme mentioned therein. Dr. Mallick would necessarily
therefore, be the Chairman of the Tuberculosis Control Programme
Recruitment Committee. But the very Resolution indicates that recruit-
ment 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.
F
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 costs 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. G
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 March
· 1983 has to be read along with the Government Orders dated 3rd Decem-
ber 1980 and not de hors them. The supersession of the previous orders as H
142 SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.
A contemplated by the Resolution of 25th March 1983 was only to the limited
extent that the Selection Committee mentioned in the said Resolution will
be the Committee for appointing such persons on the concerned program-
mes and to that extent the recruiting authority as mentioned in the earlier
Government Orders would be superseded but it did nothing more than
B that. The procedure for recruitment, however, would remain the same even
for the newly constituted Selection Committee as per the Resolution of
25th March 1983. Consequently it is not possible to agree with the conten-
tion of learned counsel for the appellants that this Resolution of 25th
March 1983 displaced and gave a send-off to the recruitment procedure
laid down by the Government Or.ders of 3rd December 1980. It is also
C equally not possible to agree with the contention of learned counsel for the
appellants that as the recruitment was to be made on Tuberculosis Eradica-
tion Scheme under 20-Point Programme and the appointments were to be
made to posts on any regular cadre of Bihar State Service the recruitment
procedure laid down by earlier Government Orders of 3rd December 1980
D would not stand attracted. It is easy to visualise that though the vacancies
or posts, as the case may be, may not be in the regular Bihar State Service
but would be in the concerned programmes or schemes, nonetheless there
would have to be recruitment to the sanctioned vacancies necessarily
backed up by the financial budget support, to be made available by the
E State as per 20-Point Programme under its liability to contribute towards
the same along with Central Government. 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 he can work and can be paid
as per the budgetary sanctions. It appears that Dr. Mallick suffering from
F wrong notions of power and authority under the said Government Resolu-
tion and without bothering to find out whether there were vacancies or not
under the Scheme indulged in self-help to recruit as many Class III and
Class IV employees as suited him and the result was that he loaded a dead
weight of burden of these employees on the State Exchequer by resorting
to a completely unauthorised exercises. The State authorities were justified
G in refusing to release salaries for paying this unauthorised army of staff
which represented a host of unwelcome guests. They were all persons non
grata and were not employees in the real sense of the terms. 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.
H As they were contrary to all recognised recruitment procedures and were
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.] 143
highly arbitrary, they were not binding on the State of Bihar. The first point A
for determination, therefore, will have to be answered in the negative.
Point No. 2
So far as the question of confirmation of these employees whose B
entry itself was illegal and void, is concerned, it is to be noted that question
of confirmation or regularisation of an irregularly appointed candidate
would arise if the concerned candidate is appointed in an irregular manner
or on ad hoc basis against an available vacancy which is already sanctioned.
But if the initial entry itself is unauthorised and is not against any sanc-
tioned vacancy, question of regularising the incumbent on such a non-ex- C
isting vacancy would never survive for consideration and even if such
purported regularisation on confirmation is given it would be an exercise
in futility. It would amount to decorating a still-born body. Under these
circumstances there was no occasion to regularise them or to give them
valid confirmation. The so-called exercise of confirming these employees
therefore, remained a nullity. Learned counsel for the appellants invited D
our attention to the chart showing the details of appointments of the
concerned appellants as found at Annexure XXII at pages 243 to 253 of
the paper book and also as a specimen a subsequent order of confirmation
as found at page 256 in the case of Ashwani Kumar. It was submitted that
such confirmation orders were also given to number of employees who
were initially appointed as daily wagers/T.B. Assist:u1.ts by Dr. Mallick. Our E
attention was also invited to the letter of Joint Secretary Shri Anant Shukla
written to the Superintendent, T.B. Hospital, Koelwar, Bhojpur on 17th
October 1984 which is found as Annexure-X at page 127 of the paper book
to show that steps were taken for ratification of the orders of appointment
of the daily wage employees as per the directi()n of Deputy Director, F
T.B./Health Services, Bihar. As we have seen eiiflier 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 Scheme. It passes one's comprehension as to how against
2500 sanctioned vacancies confirmation could have been given to 6000 G
employees. The whole exercise remained in the realm of an unauthorised
adventure. Nothing could come out of nothing. Ex nihilo nihilo fit. Zero
multiplied by zero remained zero. Consequently no sustenance can be
drawn by the appellants from these confirmation orders issued to them by
Dr. Mallick on the basis of the directions issued by the concerned
authorities at the relevant time. It would amount to regularisation of back H
144 SUPREME COURTREPORTS[1996] SUPP.10 S.C.R.
A door entries which were vitiated from the very inception. It is not possible
to agree with the contention of learned counsel for appellants that the
vacancies on the Scheme had nothing to do with regular posts. Whether
they are posts or vacancies they must be backed up by budgetary provisions
so as to be included withm the permissible infrastructure of the Scheme.
Any posting which is dehors the budgetary grant and in a non-existing
B vacancy would be outside the sanctioned scheme and would remain totally
unauthorised. No right would accrue to the incumbent of such a'.n imaginary
or shadow vac.ancy.
In this connection it is pertinent to note that question of regularisa-
C tion 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 concerned. incumbents have continued to be employed for a long
period of time with or without any artificial breaks, and their services are
D 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 substant.ial length of time to regularise them ,,so that the
concerned employees can give their best by being assured security of
tenure.· But this would require one pre-condition that the initial entry of
E such an employee must be made against an available sanctioned vacancy
by following the rules and regulations governing such entry. The second
type of situation in which the question of regularisation may arise would
be when the initial entry of the employee against an available vacancy is
found to have suffered from some flaw in the procedural exercise though
F the person appointing is competent to effect such initial recruitment and
has otherwise followed due procedure for such recruitment. A need may
then. arises in the light of the exigency of administrative requirement for
waivihg such irregularity in the initial appointment by competent authority
and the irregular initial appointment may be regularised and security of
tenure may be made available to the concerned incumbent. But even in
G 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
H is tainted and is in total breach of the requisite procedure of recruitment
ASHWANIKR. v. STATE[S.B.MATMUDAR,J.] 145
and especially when there is no vacancy on which such an initial entry of A
the candidate could ever be effected. Such an entry of an employee would
remain tainted from the very beginning and no question of regularising
such an illegal entrant would ever survive for consideration, however
competent the recruiting agency may be. The appellants fall in this latter
class of cases. They had no case for regularisation and whatever purported B
regularisation was effected in their favour remained an exercise in futility.
Learned counsel for the appellants, therefore, could not justifiably fall back
upon the orders of regularisation passed in their favour by Dr. Mallick.
Even otherwise for regularising such employees well established procedure
had to be followed. In the present case it was totally by-passed. In this
connection we may profitably refer to Government Order dated 31st c
December 1986 to which our attention was invited by learned counsel for
the appellants. The said Government Order is found in the additional
documents submitted in C.A. Nos. 10758-59 of 1995 at Annexure-IV
Secretary to Government of Bihar, Health Department, by Cornmnnication
dated 31.12.1986 had informed all regional Deputy Directors. Health Ser- D
vices; Tuberculosis Civil Surgeon-cum-Chief Medical Officer; and other
concerned authorities in connection with the compliance and implementa-
tion of the others passed and instructions issued by Deputy Director
- (Tuberculosis) Bihar, Patna under the Tuberculosis Control Programme
covered under the 20-Point Programme. It was stated in the said com-
munication that steps will be taken to fill up sanctioned third and fourth
E
Grade posts as soon as possible according to the prescribed procedure and
all possible efforts should be made to achieve the fixed targets in a planned
and phased manner. Even this letter clearly indicates that the posts had to
be filled up by following the prescribed procedure. Despite all these
communications neither the initial appointments nor the confirmations F
were done by following the prescribed procedure. On the contrary all
efforts were made to bypass the recruitment procedure known to law which
resulted in clear violation of Article 14 and 16(1) of the Constitution of
India both at the initial stage as well as at the stage of confirmation of these
illegal entrants. The so-called regularisations and confirmations could not G
be relied on as shields to cover up initial illegal and void actions or to
perpetuate the corrupt methods by which these 6000 initial entrants were
drafted in the Scheme by Dr. Mallick. For all these reasons, therefore, it
is not possible to agree with the contention of learned counsel for the
appellants that in any case the confirmations given to these employees gave
H
146 SUPREME COURTREPORTS(1996) SUPP. lOS.C.R.
A 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
B
not get shattered and arbitrary actions would not get sanctified.
c
We may also at this stage refer to additional written submissions filed
on behalf of the appellants in C.A. Nos. 10831-10985. In these written
submissions reliance is placed on the judgment of one of us, A.M. Ahmadi,
J. (as His Lordship then was), in the case of Jacob M. Puthuparambil &
Ors Etc. Etc. v. Kera/a Water Authority & Ors. Etc. Etc., (1991) 1 SCC 28.
c In the said decision it was held that when ad hoc employees who were
continued for two years or more (in some cases one year or more) were
entitled to be regularised subject to availability of vacancies. The aforesaid
decision cannot be of any avail to the appellants for the simple reason that
once we find that there were no vacancies at all on which the appellants
could be regularised there was no occasion to undertake such an exercise
D especially when the initial entries of these appellants in the service were
found to be illegal and vitiated.
Before we leave discussion on point No. 2 it is necessary to mention
E
two additional aspects placed for our consideration by Dr. Dhavan in
support of the appellants. In Civil Appeal Nos. 10811-28 of 1995 Dr. -
Dhavan submitted that there were two phases in connection with recruit-
ment for Tuberculosis Eradication Programme. One phase was as per
Government Order of 25th March 1983 wherein the committee of recruit-
ment headed by Dr. Mallick was entrusted with the task of recruitment.
But the second phase started on 31.1.1987 when Joint Secretary to Govern-
F ment of· Bihar, Health Department addressed a communication to the
Deputy Director, Tuberculosis, Dr. Mallick. The said communication is
found as Annexure V to the paper book in Civil Appeal No. 10811-28 of
1995. It mentions that the signatory to the communication was directed to
say that keeping in view the necessity of one T.B. Assistant and T.B.
G Attendant for each of the 627 Primary Health Centres, a training
programme should be launched for training the candidates in proportion
to the number of Primary Health Centres, which will consist of such "'
-4
available trained candidates who will have to compulsorily participate in a
final examination conducted by the Director, State T.B. Demonstration and
H Training Centre and shall have pass such examination so that they may be
ASHWANIKR. v. STA1E[S.B.MAJMUDAR,J.] 147
posted in the Primary Health Centres in order of merit from the list of A
trained candidates after approval of sanction of posts by the Government
in phases. Dr. Dhavan contended that pursuant to the said direction Dr.
Mallick appointed number of candidates under the Training Programme
and these candidates were trained for being ultimately absorbed in primary
health centres under the Scheme. We fail to appreciate how this com- B
munication which is styled as beginning of the second phase by Dr. Dhavan,
can change the situation. Even though some training was given under the
direction of the Government to certain candidates the recruitment made
by Dr. Mallick in excess . of the available vacancies would still remain
unauthorised and illegal and cannot improve the situation for the said C
trainees in any manner. Even after training when recruitment is to be made
it must be made on available vacancies or sanctioned posts under the
Scheme and that too after ·following due procedure of recruitment. That
was never done by Dr. Mallick. Therefore, the so-called second phase
cannot improve the position for the appellants in any manner. Dr. Dhavan D
then submitted that at least so for as 8 appellants in Civil Appeal arising
out of S.L.P. (C) No.14275of1994 are concerned, they were not appointed
by Dr. Mallick but were appointed by Dr. Mithilesh Kumar. In para 3 of
S.L.P.(C) No. 14275 of 1994 it has been stated that one letter was issued
by the then Deputy Director (T.B.), Dr. Mallick on 23rd November 1989
by which the Civil Surgeon-cum-Chief Medical Officer. Madhubani was E
directed to absorb petitioner No. 2 according to his qualification against a
Class III post and accordingly he was appointed. At page 83 is found the
recital as regards petitioner Nos. 7 and 8, to tlie effect that with respect to
them Dr. Mallick, the then Deputy Director (T.B.) Health Services issued
one letter dated 12th January 1990 recommending for their absorption F
against Class III posts according to their qualification and that is how they
were appointed by Dr. Mithilesh Kumar. It was next submitted with refer-
ence to paragraph 13 of the same Special Leave Petition that wi_t!!_ respect
to the appointments which were made by then Civil Surgeon-cum-Chief
Medical Officer, Madhubani, like the petitioners a separate letter was G
issued on 6th March 1993 wherein the incharge Medical Officers of
Primary Health Centres were directed to issue show cause notices to such
-,
- persons, who were appointed/absorbed by the_ order of the then Civil
Surgeon-cum-Chief Medical Officer, but such show cause notices were
never issued. In our view these averments cannot improve the case of the · H
148 SUPREME COURT REPORTS[1996] SUPP. 10 S.C.R.
A appellants. Even though these concerned petitioners might have been
actually appointed by Dr. Mithilesh Kumar their appointments were
recommended by Dr. Mallick who, therefore, remained the prime mover
in their cases also as in cases all other appellants. It is the hand of Dr.
Mallick that brought them under the Tuberculosis Eradication Scheme and
B but for him they would not have got their entry. Therefore, actual appoint-
ments might have been made by Dr. Mithilesh Kumar but the real appoint-
ing agency remained that of Dr. Mallick. Consequently the effort made by
Dr. Dhavan to separate their cases from the cases of other appellants who
are tracing their direct linkage with Dr. Mallick remained an abortive one.
C Similarly whether show cause notices were issued to them or not also would
be besides the point as we will see while deciding point No. 3 that public
notices were given to appointees to have their say before the competent
authority in connection with their appointments and basic principles of
natural justice were followed in these cases also. The second point, there-
fore, is answered in the negative. This takes to the consideration of Point
D No. 3 for determination.
Point No. 3
So far as the principles of natural justice are concerned it has to be
E stated at the outset that principles of natural justice cannot be subjected
to any straight jacket formula. They will vary from case to case, from
circumstance to circumstances and from situation to situation. Here is a
case in which 6000 employee were found squatting in the Tuberculosis
Scheme controlled and monitored by Dr. Mallick for the entire State of
Bihar and there was no budgetary sanction for defraying their expenditure.
F At least out of the 6000 employees as seen earlier 3750 were totally
unauthorised and were squatting against non-existing vacancies. A grave
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. .-=:
G When such a grave situation had arisen and when matters had gone up to
the High Court wherein the State was directed to appoint a Committee to
thoroughly investigate the entire matter, the State of Bihar had to appoint
a Committee to scrutinise these appointments and to filter them as directed
by the High Court of Patna. For undertaking the said exercise public
H notices were issued by the Director,in-Chief, Health Service, Bihar, Patna
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.] 149
by communication dated 4th July 1992. The said communication which is A
found at page 147 of the paper book recites that Dr. Mallick, the then
Deputy Director (T.B.) presently retired, issued orders of appoint-
ment/posting/transfer/absorption on a large scale against the Class III and
Class IV posts in the T.B. Eradication Programme under the Directorate
of Health Services without following the procedure for appoint- B
ments/without publication of advertisement and by openly violating reser-
vation policy in contravention of Article 16. While distributing such
appointment letters. Dr. Mallick in many cases did not even care to see
whether even the posts were sanctioned or not. Reference was made to the
order passed by High Court of Patna which had directed the Government C
to enquire into all such matters and after considering the representations,
pass a final order within 6 weeks. It was in the light of the Patna High
Court's direction that the Government called upon all the concerned
persons to submit their representations, show causes replies before the
signatory to the communication positively by 25th. July 1992 so that ap- D
propriate decision might be taken after examining the legality of their
appointments. Six types of informations were sought for from the con-
cerned persons. The employees appointed from 1980 to 1987 were called
upon to appear before the Director-in-Chief, Health Services, Bihar, Patna
in his office situated at Vikas Bhawan, Secretariat at 11.00 a.m. positively
with a copy of show-cause reply on different dates ranging from 17th E
August 1992 to 19th September 1992 and the employees appointed from
May 1988 to December 1988 and from January 1989 to December 1989-90 ·
were to appear in person on 29th September 1992. It is not in dispute that
pursuant to the aforesaid communication duly published, out of 6000
employees who were the creatures of Dr. Mallick, 987 did appear. The F
appellants in C.A. Nos. 10758-59 of 1995 and others did submit details of
their service bio-data to the concerned authority as per the said com-
munication. A sample copy of the show cause reply sent to the Director-
in-Chief, Health Service, in response to the said communication is at page
151 of the paper book. Querywise replies are found in the said return. It G
was thereafter that a written order was passed by Director-in-Chief on 12th
November 1992 appointing a committee of officers for scrutinising these
replies and for coming to the correct conclusion in the light of the data
supplied by the concerned employees who remained present for personal
hearing before the authority in response to the earlier communication. The H
150 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A said order dated 12th November 1992 is at page 402 of the paper book. It
clearly recites that after due consideration of all the facts, the Government
had decided that the validity of all the appointments made by Dr. Mallick
after 1.1.1%0 should be examined. Accordingly all the concerned officials
were given opportunity to submit show cause replies before the Director-
B'"" in-Chief, Health Service Bihar, Patna by 25.7.92, .after getting the notice to
show cause advertised on 4.7.92 and also were given. opportunity for
personal hearing after fixing separate dates for officials appointed yearwise
from 1980 till August-September 1992. A committee of the officers men-
tioned in paragraph 4 was appointed to review the show cause replies
C mentioned in paragraph 3 and information received in course of personal
hearings. The committee had to review the merits/demerits of the appoint-
ments under question in the light of policy and procedures prescribed by
Government from time to time for appointment in Public Service and
submit its recommendation to the Government. The learned counsel for
D the appellants submitted that api;ointment of this review committee was
after the personal hearing before the Director-in-Chief. Health Service,
Bihar, Patna and therefore, this violated the basic principles of natural
justice. It is difficult to agree. All the concerned appointees whose appoint-
ments by Dr. Mallick were to be filtered were given personal hearing by
E the Director-in-Chief. The data which they had to submit was duly received
and it was thereafter that the Review Committee was entrusted with the
task of going through the data submitted by these employees along with
their replies and their say during the personal hearing. Therefore, the said
Review Committee was only to scrutinise the data collected during the
personal hearing by the Director-in-Chief, Health Service and on that basis
F the Committee decided the question of legality and validity of their ap-
pointments. Thus the basic principles of natural justice cannot be said to
·have been violated by the committee which ultimately took decision on the
basis of the personal hearing given to the concerned employees and after
considering what they had to say regarding their appointments. Whatever
G was submitted by the concerned employees 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 the appellants. On the facts of these cases,
H therefore, it cannot be said that principles of natural justice were violated
ASHWANIKR. v. STATE[S.B.MAJMUDAR,J.] 151
or full opportunity was not given to the concerned employees to have their A
say in the matter before their appointments were recalled and terminated.
Point No. 3 is, therefore, is answered in the negative.
Point No. 4
B
Now is the time for us to take stock of the situation in the light of
our answers to the aforesaid three points. As a logical corollary to these
answers the appeals are liable to be dismissed as the decision of the High
Court is found to be well sustained. The submission made by learned
counsel for the appellants to sustain services of these appellants on
humanitarian grounds cannot be countenanced. When 6000 appointees are C
J
found to have been illegally loaded on the State exchequer by Dr. Mallick
and when there were only 2250 sanctioned posts, in the absence of clear
· data as to who were the senior most and which were the sanctioned posts
available at the relevant time against which they could be fitted it would
be impossible to undertake even a jettisoning operation to offload the D
removable load of excess employees amounting to 3750 by resorting to any
judicial surgery. Once the source of their recruitment is found to be tainted
all of them have to go by the board. Nor can we say that benefit can be
made available only to 1363 appellants . before as the other employees
similarly circumscribed and who might not have approached the High
Court or this Court earlier and who may be waiting in the wings would also E
be entitled to claim similar relief against the State which has to give equal
treatment to all of them otherwise it would be held guilty of discriminatory
treatment which could not be countenanced under Articles 14 and 16(1)
of the Constitution of India. Everything, therefore, must start on the clean
slate. Reliance placed by learned counsel for the appellants on the F
doctrine of tempering justice with mercy also cannot be pressed in service
on the peculiar facts of these cases as mercy also has to be based on justice.
The decision of this Court in the case of H.C. Puttaswa~y (supra) also can
be of no assistance to the appellants on the facts of the present cases as in
that case the Chief Justice of the High Court had full financial powers to G
create any number of vacancies on the establishment of the High Court as
required and to fill them up. There was. no ceiling on his such powers.
Therefore, the initial entry of the appointees could not be said to be
unauthorised or vitiated or tainted. The fault that was found was the
manner in which after recruitment they were passed on to the estab-
lishments to subordinate courts. That exercise remained vitiated. But as the H
152 SUPREME COURT REPORTS[1996) SUPP.10 S.C.R.
A original entries in High Court service were not unauthrised these can-
didates/employees were permitted to be regularised. Such is not the
present case. The initial entry of the employees is itself unauthorised being
not against sanctioned vacancies nor was Dr. Mallick entrusted with the
power of creating vacancies or posts for the schemes under the Tuber-
B culosis Eradication Programme. Consequently the termination of the ser-
vices of all the these appellants cannot be found fault with. Nor any relief
as claimed by th.em of reinstatement with continued service can be made
available to them.
However there is one human aspect which calls for our attention on
C the facts of the present cases. These 6000 employees got employed by Dr.
Mallick over at least a decade. Many of them served for number of years
and got confirmed. They would naturally have their families to support. For
no fault of theirs they found themselves stranded in life midstream. Many
might have got averaged. As Dr. Dhavan pointed out, many of them also
D got trained under the second phase of the Programme, as he would like to
style it, pursuant to the Government Order dated 31.1.1987 referred to by
us earlier. Under these circumstances justice would require that some
effort to salvage their situation if possible may be made when the State
u11dertakes a fresh exercise to fill up the sanctioned posts under the
Tuberculosis Eradication Programme which has come to stay. We are
E informed that tuberculosis is still not eradicated in the State of Bihar and
the Programme is to last for couple of more years and may be it may
assume a semi-permanent status. It was also not disputed that there are
2250 sanctioned posts or it may be that some more sanctioned posts may
-
see the light of the day in near future. Shri Singh learned counsel for the
p respondent-State informed us that the State proposes to start on a clean
slate and after following due procedure of recruitment would certainly
recruit Class III and Class IV employees on the sanctioned vacancies and
posts which will have to be filled up for making the Tuberculosis Eradica-
tion Scheme effective and fully operative. When that is the need of the day,
G it would.be appropriate to direct the State to undertake that exercise at
the earliest and while doing so after following the due procedure of
recruitment and the rules government the same, give an opportunity to
these 6000 unfortunate creatures of Dr. Mallick to ·compete for the said
posts in the future recruitment that may be undertaken by the State and in
the process because of the experience which they have gathered in their
H past service under the Tuberculosis Programme and the training which they
ASHWANI KR. v. STATE [S.B. MAJMUDAR,J.] 153
might have received pursuant to the Government Order dated 31.1.1987, A
due weightage also be given to them while considering their eligibility for
being recruited in service as and when such future exercise is undertaken.
Consequently we deem it fit to issue the following directions to the respon-.
dent State of Bihar in this connection :
1. Respondent-State of Bihar may start at the earliest a fresh exerci5e B
for recruiting Class III and Class IV employees in the Tuberculosis
Eradication Programme undertaken by the State as a part of 20-Point
Programme on the available 2250 vacancies or even more vacancies, as the
case may be, preferable within three months from the receipt for a copy
of this order. C
2. Towards the said exercise the State will publish a notice in all the
newspapers having circulation in the State inviting applications for direct
recruitment to Class III and Class IV posts for filling up these vacancies
in the said Programme.
D
3. Similarly names ni.ay also be called for from the concerned
Employment Exchange for such recruitment.
4. If no statutory body composed of high-ranked officials for recruit-
ment to Class III and Class IV employees is in vogue, the State is directed E
to constitute a committee consisting for three members, viz., (a) a member
of the Public Service Commission : {b) a senior IAS officer, i.e., the
Additional or Joint Secretary of the Health Department; and (c) a senior
officer, i.e., the Director or Additional Director of Health Service, to select
the candidates. The Additional or Joint Secretary of Health Department
shall be the Chairman of the Committee. F
5. The respondent-State will constitute such a committee preferably
within three months of the receipt of this order.
6. It would be open to all the appellants or those appointed by Dr.
Mallick who might not have challenged their termination orders before any G
competent court uptill now, to apply for selection to the concerned Class
III and IV posts. The committee would in their cases as first step, verify
and satisfy itself of the credentials of such candidates whether they were
appointed by Dr. Mallick and had worked at least for three years con-
tinuously. The committee would also satisfy itself that such candidate or H
154 SUPREME COURT REPORTS(l996) SUPP.10 S.C.R.
A candidates honestly and meritoriously discharged their duties as Class III
and Class IV appointees, at least for the said period.
7. The committee may fix total number of marks to be obtain~d by
the candidates for being treated to have passed the selection test. Any
relaxation in the minimum eligibility marks to be obtained by the Scheduled
B Castes. Scheduled Tribes and Other Backward Classes candidates as found
necessary may also be decided by the Committee. The committee if satis-
fied about the credentials and other particulars of the appellants or those
appointed by Dr. Mallick as mentioned in paragraph (6) above, may allot
additional marks to them for each of the three years and more for which
C they might have worked, at the rate of 2 marks for each completed year of
continuous working upto the maximum of 6 marks, for each candidate.
Candidates appointed by Dr. Mallick who are found to have undertaken
training pursuant to Government direction dated 31.1.1987 may be
awarded 2 additional marks for the training so received. Those 2 marks
D will be in addition to the 6 marks which are to be awarded on completion
of meritorious and honest service by the concerned employees as men-
tioned above.
8. If the concerned candidates who were earlier appointed by Dr.
Mallick are found by the committee to be otherwise eligible for being
E appointed to Class III and Class IV posts as per the refevant rules and
regulations and if on the basis of the marks allotted to them as aforesaid
they become eligible to be appointed besides other competing candidates,
then if they are found to have become age barred the condition of age for
recruitment of such candidates should be relaxed appropriately so as to
F entitle such candidates to be considered for selection.
9. The State Government shall arrange sittings of the Selection
Committee preferably within two months from the last date prescribed for
submitting the applications and for completion of the preliminary scrutiny
of such applications. The committee shall select all candidates on merits
G following the prescribed procedure in the appropriate circulars and rules
and shall also follow the rules of reservation as in vogue and prepare the
merit list and should submit it to the government. While doing so the
eligible candidates who were earlier appointed by Dr. Mallick and who
received the marks for their past meritorious service and training as
H aforesaid will be considered for selection qua the other candidates in the
ASHWANIKR. v. STAIB(S.B.MAJMUDAR,J.] '155
light of the weightage of the marks as aforesaid and in that light the A
committee will select all the candidates on merits and will prepare the
select list of candidates found fit to be appointed to the concerned posts.
10. The committee will complete the process of selection preferably
within three months from the date of its sittings for selection.
B
11. An appropriate authority or the government, as the case may be,
will appoint preferably within three months from the date of the receipt of
the merit list from the committee, the selected candidates as per roster and
the m_erit list, on available vacancies, after due identification of the creden-
tials of the candidates concerned as per its legally permissible procedure. C
12. In the event of selection and appointment of erstwhile daily-rated
employee or employees, who were inducted by Dr. Mallick, the entire
proved period during which they had worked as daily wager and/or con-
firmed employees will be computed for the purpose of pensionary and
other retrial benefits but they will not be entitled to claim any inter se higher D
seniority in the selection made by the committee or for any promotion on
the basis of their previous service.
The appeals are disposed of in the above terms. In the facts and
circumstances of the case there will be no order as to costs. .
E
R.A. Appeals dismissed of.
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