STATE OF BIHAR AND ORS.versusCHANDRESHWAR PATHAK

                   [2014) 9 S.C.R. 391


              STATE OF BIHAR AND ORS.                        A
                            v.
               CHANDRESHWAR PATHAK
                                     '
              (Civil Appeal No.7392 of 2014)
                   AUGUST 07, 2014
                                                             8
   [T.S. THAKUR AND ADARSH KUMAR GOEL, JJ.]

    Service Law:

     Appointment - Temporary appointment of constable c
made by order of Director General of Police without advertising
the post - Set aside by single Judge of High Court - Appeal
of constable allowed by Division Bench of High Court - Held:
Appointment even on temporary post without inviting
applications from all eligible candidates violates the 0
mandates of Arts. 14 and 16 of Constitution - In the instant
case, in the absence of any advertisement or selection
process, appointment of respondent is not protected and
could be validly terminated - Single Judge of the High Court
was justified in dismissing the writ petition while Division E
Bench erred in interfering with the same - Constitution of
India, 1950 - Arts. 14 and 16:

     The respondent was tempor,arily appointed to the
post of constable by the lnspectdr General of Police,
Criminal Investigation Department, by his order dated        F
14.01.1988 with the stipulation that his service could be
terminated without assigning any teason or show cause.
In the year 2000, the High Court of Patna considered the
issue of backdoor appointments made in the police
department in another case which led to review of            G
irregular appointments. Accordingly, a show cause notice
dated 10.09.2003 was issued to the respondent and since
no valid reason was shown in his reply, the order dated

                            391                              H
    392        SUPREME COURT REPORTS [2014] 9 S.C.R.

A 26.09.2003 was passed terminating his services. The writ
  petition filed by the. respondent was dismissed by the
  single Judge of the High Court, but his appeal was
  allowed by the Division Bench.

       In the instant appeal filed by the State Government,
  the question for consideration~f _the Court was as to
8
  whether the appointment of the respondent made without
  any advertisement 'Or selection process could be
  considered to be a valid appointment to a public post
C protected under Arts. 14 or 311 of the Constitution of
  India.

          Allowing the appeal, the Court

      HELD: 1.1. No person can be appointed even on a
0 temporary or ad hoc basis without inviting applications
  from all eligible candidates, and if done so, such a course
  violates the mandates of Arts. 14 and 16 of the
  Constitution of India as it deprives the candidates who
  are eligible for the post, from being considered. A person
E employed in violation of these provisions is not entitled
  to any relief including salary. [para 14] [399-H; 400-A-C]

        State of Orissa &Anr. vs. Mamata Mohanty 2011 (2) SCR
    704 = (2011) 3 sec 436 - relied on.

F      1.2. In the instant case, the appointment has been
  given only on the asking of the Inspector General of
  Police. There is nothing to show that any advertisement
  was issued giving opportunity to all eligible candidates
  to compete or any selection process was undertaken
G before appointment of the respondent. Moreover, another
  Division Bench of the same High Court has upheld
  terminatioh in· similar matter against Which S.L.P. has
  been dismissed by this Court. [para 13 and 15) [389-G- -
  H; 399-A; 400-D-E]

H         1.3. Accordingly, it has to be held that in the absence
   STATE OF BIHAR v. CHANDRESHWAR PATHAK                    393

 of any advertisement or selection process, the                   A
,appointment of the respondent is not p_rotected and
 could be validly terminated. The Single Judge was
 justified in dismissing the writ petition while the Division
 Bench erred in interfering with the same. The order
 passed by the Division Bench of the High Court is set            B
 aside and that passed by the single Judge of the High
 Court restored. [para 16-17] [400-E-G]
                      Case Law Reference:
   2011 (2) SCR 704            relied on·         para 14         c
      CIVIL APPELLATE JURISDICTION: Civil Appeal No.7392
,of 2014.

    From the Judgment and Order dated 05.01.2012 in LPA
No. 945/2010, 05.01.2012 in CWJC No. 204/2004 of the High         D
Court of Patna.
     Gopal Singh, Manish Kumar for the Appellants.

     Manoj R. Sinha, T. Mahipal for the Respondent.
                                                                  E
     The Judgment of the Court was delivered by

     ADARSH KUMAR GOEL, J. 1. Leave granted.

      2. This appeal has b.een preferred by the State of Bihar
 against the order dated 05.01.2012 of the Division Bench of      F
 the High Court of Judicature at Patna in LP.A. No.945 of 2010,
 which has the effect of quashing the order dated 26.09.2003
 passed by the of Criminal Investigation Department, Patna,
 Bihar, terminating the services of the respondent herein.
                                                                  G
     3. The respondent was temporarily appointed to the post
 of constable by the Inspector General of Police, Criminal
 Investigation Department, Patna, Bihar, vide his order c:jated
 14.01.1988 with the stipulation that his service could be
 terminated without ~ssigning any reason or show cause. In the    H
    394         SUPREME COURT REPORTS [2014] 9 S.C.R.


A year 2000, the High Court of Patna con$idered the issue of
  backdoor appointments made in the police department in
  another case which led to a direction by the Department of
  Home (Police), Government of Bihar dated 04.09.2000 to the
  Police Headquarter, Bihar to review irregular appointments and
B to remove such appointees from service.

      4. Accordingly, a show cause notice dated 10.09.2003
  was issued to the respondent-writ petitioner asking him why his
  appointment should not be cancelled and since no valid reason
C was shown in his r~ply, order dated 26.09.2003 was passed
  terminating the services of the respondent.

        5. Challenging the above order, the respondent herein
  preferred a writ petition before the High Court of Patna which
  was heard by a learned single Judge. By order dated
D 09.04.201 O; the learned single ·Judge dismissed the writ
  petition with the following observations:

          "This Court is not satisfied that the petitioner has made
          out a case for interference with the order of termination
E .       from what appears to be an illegal appointment based on
          the spoils systems.

          Apart from the illegal entry into services, the alleged
          regularisation is of no avail to him as it is apparently a
          single case considered without others to dole out an
F         individual benefit.

          The submission that he had served for 16 long years
          and, therefore, his case should be considered
          sympathetically does no1 appeal to this Court.
G         The {letitioner must perish by the same ,sword by which
          he came.

          Reliance of the petitioner on an order of this Court in
          C. WJ. C. No. 5279104 interfering with a similar order of
H         termination on the ground that it had been passed after
  STATE OF BIHAR v. CHANDRESHWAR PATHAK                    395
          [ADARSH KUMAR GOEL, J.]
    15 years is best answered by the judgment of the               A
    Supreme Court in (2005) 4 SSC 209 (Bind Kumar Gupta
    vs. Ram Ashray Mahato & Ors.) where the Supreme
    Court declined to interfere with an order of termination
    passed after 15 years of service, in case of an illegal
    appointment."                                                  B

      However, on appeal, the Division Bench allowed the writ
petition following an earlier order"dated 18.05.2005 in another
case, i.e., C.W.J.C. No. 5279 of 2004 filed by one of the
similarly placed employee.
                                                                   c
     6. We have heard Mr. Gopal Singh, learned counsel for
the State of Bihar and Mr. Manoj R. Sinha, learned counsel for
the respondent.

     7. Learned counsel for the appellant submitted that the       Di
Division Bench erroneously followed the judgment in C.W.J.C.
No. 5279 of 2004 which was distinguishable as therein no show
cause notice was issued ll)fhile in the present case, a show
cause notice was duly issued to the respondent. Referring to
the order of appointment, it was submitted that the present was    E
a case of backdoor appointment without any advertisement or
selection process. It was also pointed out that another Division
Bench of the same High Court in Hemkant Jha etc. etc. vs. The
State of Bihar & Ors. (LP.A. No. 625 _of 2003 etc.etc. deci.ded
on 18.7.2007) dealt with a group of identical matters> on
remand by this Court; and upheld termination of services of        F
police constables appointed without any selection. Therein, it
was observed:

     "6 On going through the impugned judgments, the
     relevant facts and the judgment in the case of Sudhir         G
     Kumar, it is found that on facts, there is no meaningful
     and serious challenge to the relevant facts that concerned
     employees in these matters have been appointed on the
     post of Constable without any a_dvertisement and without
     following procedure of appointment. No general or order       H
    396         SUPREME COURT REPORTS [2014] 9 S.C.R.


A         or regulation of the State Government is available to
          suppor:t the contention that appointment of the appellants
          is akin to compassionate appointment for which the State
          Government has taken a policy decision and prescribed
          rules. In facts, there is no controversy or issue in these
B         matters because on admitted facts it is clear that the
          appointment of the appellants on the post of Constable
          were made through a backdoor method in complete
          disregard of procedure for appointment laid down in
          relevant rules in the Police Manual and in violation of
          constitutional mandate of equality in public employment.
c         The ·state has rightly relied upon various judgments
          including that of a Constitution Bench of the Apex Court
          in the case of Secretary, State of Karnataka vs. Uma
          Devi (3), reported in (2006) 4 sec 1, to submit that such
          appointments do not confer any right on the appointees
D         and in such cases of appointments made without
          following due process as per ma,ndate of the Constitution
          or the relevant rules for appointment, the Court cannot
          direct for grant of benefits like absorption, regularisation
          or re-engagement. Those principles, though considered
E         in that case in the context of absorption, regularization,
          wi!lapply with equal force where such illegal appointment
          has been terminated and the Court is called upon to
          consider such order and the connected issue of ordering
          for reinstatement, i.e., for continuation of such illegal
F         appointments. That Constitution Bench judgment has
           emphasized the relevant aspects in paragraphs 33 and
           39 and in paragraph 54 it has been clarified that those
           decisions which run counter to the principles settled in
           that decision, or in which directions run count~r to that
G          decision, will stand denuded of their status as precedents.
           The same principle of law flows from a Division Bench
          judgment of this Court in the case of Amrendra Singh vs.
           State of Bihar, 1999 (3) PLJR 984.

          7. Having found that the appellants employees
H
  STATE OF BIHAR v. CHANDRESHWAR PATHAK                 397
          [ADARSH KUMAR GOEL, J.]
    conce.rned are backdoor appointees as held by the          A
    learned Judges in the impugned orders and they have
    no right to their posts, we are now required to consider
    the submissions advanced on behalf of the appellants
    that the impugned orders should be set aside because
    the termination orders were. issued by the various         B
    Superintendent of Police not of their own free will but
    rather under the directions of the higher authorities
    including the State Government and that principles of
    natural justice were not within relation to some of the
    petitioners/appellants.                                    c
    8. The submissions noticed above must be decided in
    the background of facts of each case. In the present case,
    the facts noticed in brief disclose that large scale
    backdoor appointments were detected to have been made
    during the tenure of a particular Director General of D
    Police. An enquiry was held and thereafter as a result of
    such enquiry directions were issued by the higher
    authorities to the Superintendents of Police, the
    competent authority to make appointments to the post of
    Constable, to issue show cause notices wherever such E
    backdoor appointments were detected and to take action
    for their termination. The issue is whether the State
    Government and the successor-Director General of
    Police could have held such enquiry and issued such
    directions or not. In order to ensure rule of law and F
    obedience to constitutional mandate governing public
    employment, the State and its officials must be held duty
    bound to take such steps and there is no legal infirmity
    in such action."
                                                               G
    8. It has been pointed out that S.L.P.(c) Nos. 1237-1240
of 2008 etc.etc. and S.L.P.(c) Nos. 3334-3337 of 2008 filed
against the above judgment were dismissed by this Court on
04.02.2008 and 0~.04.2008 respectively and on that basis
                                                               H
    398         SUPREME COURT REPORTS [2014) 9 S.C.R.


A   S.L.P.(c) No. 21543 of 2008 was also dismissed by this Court
    on 04.09.2013 in a connected matter.

          9. Learned counsel for the respondent supported the
    impugned order and submitted that having regard to the fact
    that the respondent had already served for 15 years, termination
8
    of his services was not called for.

          10. The only question for consideration is whether the·
  appointment of the respondent made without any advertisement
  or selection process can be considered to be a valid
C appointment to a public post protected under Articles 14 or 311
  of the Constitution of India?

          11. On due consideration, we are of the view that the .
    impugned judgment cannot be sustained for the reasons that
0   follow.

          12. The order of appointment, in the present case, is as
    follows:

          "In the light of the order passed by the Inspector General
E         of Police, Criminal Investigation Department, Bihar,
          Patna, vide his Letter No. 6186 F3 Sh. Chandeshwar
          Pathak, s/o Sh. Devnarayam Pathak of Village Haraji,
          P. 0. Haraji, PS- Dimbara, District- Chhapra was
          appointed as Constable temporarily from 14.01.1988
F         afternoon on the condition that his previous character
          found satisfactory and as and when necessary, his ·
          service shall be terminated without assigning any reason
          or show cause. His pay scale shall be Rs.425·10565 EB-
          10-605 with the basic pay of Rs. 4251-. He has been
G         allotted the CT No. 390."

          13. It is clear from the above order that the appointment
    has been given only on the asking of the Inspector General of
    Police. There is nothing to show that any advertisement was
    issued giving opportunity to all eligible candidates to compete
H
  STATE OF BIHAR v. CHANDRESHWAR PATHAK                399
          [ADARSH KUMAR GOEL, J.]
or any selection process was undertaken before appointment     A
of the respondent.

    14. In State of Orissa & Anr. vs. Mamata Mohanty (2011)
3 sec 436, it was observed as under:

    "APPOINTMENT I          EMPLOYMENT          WITHOUT        B
    ADVERTISEMENT:

    35. At one time this Court had been of the view that
    calling the names from employment exchange would
    curb to certain extent the menace of nepotism and c
    corruption in public employment. But, later on, came to
    the conclusion that some appropriate method consistent
    with the requirements of Article 16 should be followed. In
    other words there must be a notice published in the
    appropriate manner calling for applications and all those 0
    who apply in response thereto should be considered
    fairly. Even if the names of candidates are requisitioned
    from employment exchange, in addition thereto it is
    mandatory on the part of the employer to invite
    applications from all eligible candidates from the open E
    market by advertising the vacancies in newspapers
    having wide circulation or by announcement in radio and
    television as merely calling the names from the
    employment exchange does not meet the requirement
    of the said article of the Constitution. (Vide: Delhi F
    Development Horticulture Employees' Union v. Delhi
    Admn., State of Haryana v. Piara Singh, Excise
    Supdt. v. K.B.N. Visweshwara Rao, Arun Tewari. v. Zita
    Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram
    Ashray M.ahoto, National Fertilizers Ltd. v. Somvir
    Singh, Telecom District Manager v. Keshab Deb, State G
    of Bihar v. Upendra Narayan Singh and State of
    M.P. v. Mohd. Ibrahim).       ·

    36. Therefore, it is a settled legal proposition that no
    person can be appointed even on a temporary or ad hoc      H
     400         SUPREME COURT REPORTS [2014) 9 S.C.R.


A          basis without inviting applications .from all eligible
           candidates. If any appointment is made by merely inviting
           names from the employment exchange or putting a note
           on the notice board etc. that will not meet the requirement
           of Articles 14 and 16 of the Constitution. Such a course
a          violates the mandates of Articles 14 and 16 of the
           Constitution of India as it deprives the candidates who
           are eligible for the post, from being considered. A person
           employed in violation of these provisions is not entitled
           to any relief including salary. For a valid and legal
c          appointment mandatory compliance with the said
           constitutional requirement is to be fulfilled. The equality
           clause enshrined in Article 16 requires that every such
           appointment be made by an open advertisement as to
           enable all eligible persons to compete on merit."
D         15. No contrary view of this Court has been cited on behalf
     of the respondent. Moreover, another Division Bench of the
     same High Court has upheld termination in similar matter as
     noted earlier against which S.L.P. has been dismissed by this
     Court as mentioned earlier.
E
           16. Accordingly, it has to be held that in the absence of
     any advertisement or selection process, the appointment of the
     respondent is not protected and could be validly terminated.
     Learned single Judge was justified in dismissing the writ
F    petition while the Division Bench erred in interfering. with the
     same.

         17. Accordingly, we allow this appeal, set aside the order
     dated 05.01.2012 passed by the Division Bench of the High
     Court in LP.A. No. 945 of 2010 and restore the order dated
G    09.04.2010 passed by the learned single Judge of the High
     Court in C.W.J.C. No.204 of 2004.

           18. There shall be no order as to costs.
    · Rajendra Prasad                                   Appeal allowed.
H