Supreme Court of India
STATE OF BIHARversusUPENDRA NARAYAN SINGH & OTHERS
- Citation
- 2009 INSC 382
- Decided
- 20 March 2009
- Disposal
- Appeal(s) allowed
- Bench
- MARKANDEY KATJU
Holding
The initial appointments were illegal, violating Articles 14, 16 and Section 4 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959; therefore the High Court’s reinstatement order is set aside.
Summary
The State of Bihar appealed against a High Court order that reinstated several employees appointed on an ad‑hoc basis in the Animal Husbandry Department. The Court examined whether those appointments complied with the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and the constitutional guarantees of equality under Articles 14 and 16. It found that the Regional Director had made the appointments without any advertisement, requisition to the employment exchange or merit‑based selection, constituting a gross violation of the law. The Court held that the High Court’s direction to reinstate the respondents with consequential benefits was untenable. It also rejected the Division Bench’s reliance on other cases to avoid examining the legality of the appointments. Consequently, the appeal was allowed, setting aside the lower courts’ orders and dismissing the respondents’ writ petition.
Issues considered
- The legality of the ad‑hoc appointments made by the Regional Director under the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959.
- Whether the appointments violated the equality clauses of Articles 14 and 16 of the Constitution.
- Whether the High Court could lawfully order reinstatement and grant consequential benefits to the respondents.
- Whether the Division Bench could refuse to scrutinise the appointments on the ground of other pending Letters Patent Appeals.
- Whether regularisation of illegal ad‑hoc appointments creates any enforceable right.
Legislation cited
Subjects
Article 14Article 16Equality before lawEmployment Exchanges ActAd‑hoc appointmentRegularisationPublic service recruitmentConstitutional lawSpoil systemReinstatement
Judgment
[2009] 4 S. C. R 866
A STATE OF BIHAR
v
UPENDRA NARAYAN SINGH & OTHERS
Civil Appeal No.1741 of 2009
MARCH 20, 2009
B
(MARKANDEY KAT JU AND G.S. SINGHVI, JJ.)
Service Law:
~
Employment Exchanges (Compulsory Notification of
c Vacancies) Act. 1959:
Large no. of appointments made on adhoc basis without
complying with the relevant rules and procedure - Government
passing termination orders - High Court quashing the
termination orders and directing reinstatement with
D consequential benefits - On appeal, Held: The initial
appointments were made in gross violation of the doctrine of
equality enshrined in Articles 14 and 16 of the Constitution
and the provisions of the 1959 Act- Orders of the Single Judge
and Division Bench of the High Court set aside - Constitution
E of India, Articles 14, 16.
This appeal by the State relates to large no. of adhoc
appointments without complying with relevant rules and
procedure and the High Court directing reinstatement of
such employees with consequential benefits.
F
Allowing the appeal, the Court
HELD: 1. The equality clause enshrined in Article 16
mandates that every appointment to public posts or office
should be made by open advertisement so as to enable
G all eligible persons to compete for selection on merit.
Although, the Courts have carved out some exceptions
•
to this rule, for example, compassionate appointment of
the dependent of deceased employees, for the purpose
H 866
STATE OF BIHAR V. 867
UPENDRA NARAYAN SINGH & OTHERS
of this case it is not necessary to elaborate that aspect. A
[Para 13) [883-G-H; 884-A]
E.P Royappa v. State of Tamil Nadu and others (1974) 4
SCC 3; Umesh Kumar Nagpal v. State of Haryana and others
(1994) 4 SCC 138; Union Public Service Commission v Girish
Jayanti Lal Vaghela (2006) 2 SCC 482; State of Manipur and B
others v Y Token Singh and others (2007) 5 SCC 65 and
Commissioner, Municipal Corporation, Hyderabad and others
v P Mary Manoranjani and another (2008) 2 sec 758 - relied
on.
c
2.1 For ensuring that equality of opportunity in
matters relating to employment becomes a reality for all,
Parliament enacted the Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959. Section
4 of that Act casts a duty on the employer in every
0
establishment in public sector in the State or a part thereof
to notify every vacancy to the employment exchange
before filling up the same. [Para 15) [885-B]
2.2 In terms of Section 4 of the 1959 Act, every public
employer is duty bound to notify the vacancies to the E
concerned employment exchange so as to enable it to
sponsor the names of eligible candidates and also
advertise the same in the newspapers having wider
circulation, employment news bulletins, get announce-
ment made on radio and television and consider all eligible F
candidates whose names may be forwarded by the
concerned employment exchange and/or who may apply
pursuant to the advertisement published in the news-
papers or announcements made on radio/television.[Para
.. 16] [887 -G-H; 888-A-B]
Excise Superintendent, Malkapatnam, Krishna District,
G
A.P v. K.8.N. Visweshwara Rao and others (1996) 6 SCC 216
and Arun Kumar Nayak v Union of India and others (2006) 8
sec 111 - relied on.
H
868 SUPREME COURT REPORTS [2009] 4 S.C.R.
A Union of India and others v N Hargopal and others ( 1987)
3 sec 308 - referred to.
3. The hope and expectation of the framers of the
Constitution that after independence every citizen will get
equal opportunity in the matter of employment or
B appointment to any office under the State and members
of civil services would remain committed to the
Constitution and honestly serve the people of this country •
have been belied by what has actually happened in last
four decades. The Public Service Commissions which
c have been given the status of Constitutional Authorities
and which are supposed to be totally independent and
impartial while discharging their function in terms of
Article 320 have become victims of spoil system. In the
beginning, people with the distinction in different fields
D of administration and social life were appointed as
Chairman and members of the Public Service
Commissions but with the passage of time appointment
to these high offices became personal prerogatives of the
political head of the Government and men with
E questionable background have been appointed to these
coveted positions. Such appointees have, instead of
making selections for appointment to higher echelons of
services on merit, indulged in exhibition of faithfulness
to their mentors totally unmindful of their Constitutional
F responsibility. This is one of several reasons why most
meritorious in the academics opt for private employment
and ventures. The scenario is worst when it comes to
appointment to lower strata of the civil services. Those
who have been bestowed with the power to make
G appointment on Class Ill and Class IV posts have by and •
large misused and abused the same by violating relevant
rules and instructions and have indulged in favouritism
and nepotism with impunity resulting in total negation of
the equality clause enshrined in Article 16 of the
Constitution. Thousands of cases have been filed in the
H
STATE OF BIHAR V 869
UPENDRA NARAYAN SINGH & OTHERS
Courts by aggrieved persons with the complaints that A
appointment to Class Ill and Class IV posts have been
made without issuing any advertisement or sending
requisition to the employment exchange as per the
requirement of the 1959 Act and those who have links with
the party in power or political leaders or who could pull B
strings in the power corridors get the cake of employment.
Cases have also been filed with the complaints that
recruitment to the higher strata of civil services made by
the Public Service Commissions have been affected by
the virus of spoil system in different dimensions and c
selections have been made for considerations other than
merit. [Para 20] [891-F-H; 892-A-F]
A. Umarani v. Registrar, Coop. Societies and others
(2004) 7 sec 112 - relied on.
D
State of Haryana v Piara Singh (1992) 4 SCC 118; Delhi
Development Horticulture Employees Union v. Delhi
Administration, Delhi and others (1992) 4 sec 99 State of
UP and others v UP State Law Officers Association and others
(1994) 2 SCC 204; Director, Institute of Management
Development, UP v. Pushpa Srivastava (1992) 4 SCC 33; E
Dr M.A. Haque and others v Union of India and others (1993)
2 SCC 213; J & K Public Service Commission and others v
Dr. Narinder Mohan and others (1994) 2 SCC 630; Dr.
Arundhati Ajit Pargaonkar v State of Maharashtra and others
1994 Suppl. (3) SCC 380; Union of India and others v Kishan F
Gopa/ Vyas (1996) 7 SCC 134; Union of India v Moti Lal (1996)
7 SCC 481; Hindustan Shipyard Ltd. and others v. Dr. P
Sambasiva Rao and others (1996) 7 SCC 499; State of H.P
v Suresh Kumar Verma and another (1996) 7 SCC 562; Dr
Surinder Singh Jamwal and another v. State of J&K and others G
(1996) 9 SCC 619; E. Ramakrishnan and others v. State of
Kera/a and others (1996) 10 sec 565; Union of India and
others vs. Bishambar Dutt 1996 (11) SCC 341; Union of India
and others v. Mahender Singh and others 1997 (1) SCC 245;
P Ravindran and others v. Union Territory of Pondicherry and H
870 SUPREME COURT REPORTS [2009] 4 S.C.R.
A others 1997 ( 1) SCC 350, Ashwani Kumar and others v. State
of Bihar and others 1997 (2) SCC 1; Santosh Kumar Verma
and others V. State of Bihar and others (1997) 2 sec 713;
State of U. P and others vs. Ajay Kumar (1997) 4 SCC 88;
Patna University and another v. Dr Arnita Tiwari (1997) 7 SCC
B 198 and Madhyamik Shiksha Parishad, UP v. Anil Kumar
Mishra and others (2005) 5 SCC 122 - referred to.
4. The so-called regularization of the services of the
respondents on which heavy reliance was placed in the
context of averments contained in paragraph 4 of the
C counter affidavit filed before this Court by respondent no.3
is a proof of nepotism practiced by the officer and
deserves to be ignored. For the reasons best known to
them, the respondents have not produced copy of the
order by which their services were regularised. Perhaps
D none exists. The statement furnished by counsel for the
appellant, which is accompanied by documents marked
'A' and 'B', shows that in less than 7 months of the
respondents appointment (except respondent no.1 who
is said to have been appointed with effect from 9.10.1991 ),
E Dr. Darogi Razak is said to have written confidential
memorandum bearing no.20 dated 11.5.1992 (Annexure'A')
to District Animal Husbandry Officer, Aurongabad, Gaya
that ad hoc appointments made vide Memorandum
No.1467 dated 9.10.1991 are being regularized temporarily
F by the local appointments committee constituted on
11.5.1992. What is most amazing to notice is that the local
appointments committee was constituted on 11.5.1992,
the committee met on the same day and regularised the
ad hoc appointments and on that very day the Regional
G Director sent confidential letter to his subordinate, i.e., the
District Animal Husbandry Officer informing him about the
.
regularization of ad hoc appointments. No rule or policy
has been brought to the notice of the Court which
empowers the appointing authority to regularize ad hoc
appointments within a period of less than 7 months.
H
STATE OF BIHAR V. 871
UPENDRA NARAYAN SINGH & OTHERS
Therefore, this Court has no hesitation to hold that the A
exercise undertaken by Dr. Darogi Razak for showing that
appointments of the respondents were regularized by the
local appointments committee on 11.5.1992 was a farce.
[Para 32] [916-C-H; 917-A]
Secretary, State of Kamataka vs. Uma Devi 2006 (4) SCC B
1 - relied on.
5. The initial appointments of the respondents were
• made in gross violation of the doctrine of equality
enshrined in Articles 14 and 16 and the provisions of the c
. 1959 Act and the Single Judge of the High Court gravely
erred by directing their reinstatement with consequential
benefits. [Para 33] [917-B]
6. By now it is settled that the guarantee of equality
before law enshrined in Article 14 is a positive concept D
and it cannot be enforced by a citizen or court in a negative
manner. If an illegality or irregularity has been committed
in favour of any individual or a group of individuals or a
wrong order has been passed by a judicial forum, others
cannot invoke the jurisdiction of the higher or superior E
Court for repeating or multiplying the same irregularity or
illegality or for passing wrong order.[Para 34] [917-0-E]
~
Chandigarh Administration and another v. Jagjit Singh
and another (1995) 1 SCC 745; Secretary, Jaipur Development
Authority, Jaipur v. Dau/at Mal Jain and others (1997) 1 SCC F
35; Union of India {Railway Board] and others v. J. V Subhaiah
and others (1996) 2 SCC 258; Gursharan Singh v. New Delhi
Municipal Committee (1996) 2 SCC 459; State of Haryana v.
Ram Kumar Mann (1997) 1 SCC 35; Faridabad CT Scan
... Centre v. D.G. Health Services and others (1997) 7 SCC 752; G
·:.:.. Style (Dress Land) v. Union Territory, Chandigarh and another
(1999) 7 SCC 89; State of Bihar and others v. Kameshwar
Prasad Singh and another (2000) 9 SCC 94; Union of India
and another v. International Trading Co. and another (2003) 5
SCC 437 and Directorate of Film Festivals and others v. H
872 SUPREME COURT REPORTS (2009] 4 S.C.R.
A Gaurav Ashwin Jam and others (2007) 4 SCC 737 - referred
to.
7. The orders of the learned Single Judge and
B
Division Bench are set aside and the writ petition filed by
the respondents is dismissed. [Para 37] [924-H] ...
~
Case Law Reference
(1974) 4 sec 3 relied on Para 12
(1994) 4 sec 138 relied on Para 13
c (2006) 2 sec 482 relied on Para 13
(2007) 5 sec 65 relied on Para 13
(2008) 2 sec 758 relied on Para 13
(1987) 3 sec 308 referred to Para 15
D
(1996) 6 sec 216 relied on Para 15
(2006) 8 sec 111 relied on Para 15
(1992) 4 sec 118 referred to Para 21
E
(1992) 4 sec 99 referred to Para 22
(1994) 2 sec 204 referred to Para 23
(1992) 4 sec 33 referred to Para 24
F (1993) 2 sec 213 referred to Para 24
(1994) 2 sec 630 referred to Para 24
1994 Suppl.
(3) sec 380 referred to Para 24
G (1996) 1sec134 referred to Para 24 ..
,_........_
(1996) 1 sec 481 referred to Para 24
(1996) 1 sec 499 referred to Para 24
H (1996) 1 sec 562 referred to Para 24
STATE OF BIHAR V. 873
UPENDRA NARAYAN SINGH & OTHERS
(1996) 9 sec 619 referred to Para 24 A
(1996) 1o sec 565 referred to Para 24
1996 (11) sec 341 referred to Para 24
1997 (1) sec 245 referred to Para 24
B
-- 1997 (1) sec 350 referred to Para 24
.. 1997 (2) sec 1 referred to Para 24
(1997) 2 sec 113 referred to Para 24
c
(1997) 4 sec 88 referred to Para 24
(1997)
, 1 sec 19s referred to Para 24
(2005) 5 sec 122 referred to Para 24
(2004) 1 sec 112 relied on Para 25 D
2006 (4) sec 1 relied on Para 26
(1995) 1 sec 745 referred to Para 34
(1997) 1 sec 35 c referred to Para 34 E
(1996) 2 sec 258 referred to Para 34
(1996) 2 sec 459 referred to Para 34
(1997) 1 sec 35 referred to Para 34
F
(1997) 1 sec 152 referred to Para 34
... (1999) 1 sec 89 referred to Para 34
(2000) 9 sec 94 referred to Para 34
k
(2003) 5 sec 437 referred to Para 34 G
(2007) 4 sec 737 referred to Para 34
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1741
of 2009
H
874 SUPREME COURT REPORTS [2009] 4 S.C.R
A From the Judgement and Order dated 19.03.2007 of the
Hon'ble High Court of Judicature at Patna, in L.P.A. 61 of2007.
Manish Kumar, Gopal Singh, for the Appellants.
Nagendra Rai, Shantanu Sagar, Avinash Sharma, T
B Mahipal, for the Respondents.
The Judgement of the Court was delivered by
G.S. SINGHVI, J.
•
1. Leave granted
c
2. After taking cognizance of the fact that large number of
ad hoc appointments were being made in different departments
without complying with the relevant rules and procedure, the
Government of Bihar vide its Circular No. 7260 dated 27 .4.1979
D which was followed by another Circular No.3001 dated
16.3.1982 imposed ban on such appointments. Notwithstanding
this, ad hoc appointments continued to be made in violation of
the rules and relevant instructions. This compelled the State
Government to pass order dated 10.3.1985 for cancellation of
E ad hoc appointments and for filling the vacancies in accordance
with the rules. After one year, the issue relating to large scale
illegalities committed in the making of ad hoc appointments was
raised in the Bihar Legislative Assembly and members
expressed concern over such appointments. In the backdrop of
this development, Chief Secretary, Government of Bihar vide
F his letter dated 11.6.1986 made it clear to all the Secretaries to
the Government, Heads of Departments, Divisional
Commissioners and District Magistrates that they will be
personally responsible for the compliance of the rules and
instructions in the making of ad hoc appointments. It, however,
-
G appears that the ban imposed by the State Government was "'
relaxed qua Animal Husbandry Department and vide letter dated
4.7.1987, Under Secretary to the Government informed the
Director, Animal Husbandry that for implementation of the
schemes being operated by the department, appointments may
H be made on Class IV posts by committees comprising of
STATE OF BIHAR V. 875
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
Regional Director, Animal Husbandry as Chairman, Regional A
Joint Director, Animal Husbandry/Assistant Director, Animal
Husbandry as Secretary and one officer belonging to Scheduled
Castes/Scheduled Tribes.
3. By taking advantage of letter dated 4. 7 .1987, Dr. Darogi
Razak, the then Regional Director, Animal Husbandry, Gaya, B
made a number of appointments on Class 111 and Class IV posts
.. without issuing any advertisement or sending requisition to the
employment exchange and without making selection of any sort.
The respondents were also beneficiaries of the largess doled
out by Dr. Darogi Razak in violation of instructions issued by C
the Chief Secretary and the Animal Husbandry Department. They
were appointed as Class IV employees on 9.10.1991
(respondent no.1 ), 24.10.1991 (respondent no.2) and
27.10.1991 (respondent nos. 3, 4 and 5). Copies of the orders
of appointment of the respondents have been placed on record D
along with affidavit dated 8.9.2008 of Dr. Ram Narayan Singh,
Joint Director (HQ), Animal Husbandry, Animal Husbandry and
Fisheries Resources Department, Bihar. For the sake of
reference, the relevant extracts of English translation of order
passed in the case of respondent no.1 - Upendra Narayan E
Singh are reproduced below:
"OFFICE OF REGIONAL DIRECTOR, ANIMAL
HUSBANDRY, MAGADH RANGE, GAYA
ORDER F
In exercising the power given by letter no.5094 dated
04.07.1987 and letter no.3430 dated 14.12.1977 of
Deputy Secretary, Department of Animal Husbandry and
Cooperative, the adhoc appointments of the following
persons on the class IV posts in the scale Rs.775-12- G
955-14-1025 are made.
Their services can be terminated without any prior notice.
Health certificate from Civil Surgeon will have to be
produced at the time of joining. H
•
876 SUPREME COURT REPORTS [2009) 4 S.C.R.
A No TA/DA is admissible at the time of joining.
SI.No. Name and Address Post
1. Sri Upendra Narayan Singh Class IV
S/o Sri Awdhesh Singh
B Viii + P.O. Kunda
Distt Aurangabad
Sd/-
Regional Director .
Animal Husbandry,
c Magadh Range, Gaya
Memo no 1467 (CON) Dated 09.10.1991
Copy to Serial no.1 for information."
4. On receipt of complaints that ad hoc appointments had
been made in the department for extraneous considerations,
0
Secretary to the Government, Animal Husbandry and Fisheries
Department issued circular dated 28.10.1991 whereby
instructions contained in letter dated 4. 7.1987 were superseded
and it was directed that such appointments should be made
E strictly in accordance with the instructions issued by the Chief
Secretary. However, no step appears to have been taken in the
matter of illegal/irregular appointments already made, till the
issue of letter dated 16.4.1996 by the Secretary of the
department to the Director that in view of the institution of criminal
case against the then Regional Director, Animal Husbandry,
F Gaya, payment of salary to those appointed by him should be
stopped.
5. On receipt of communication from the Secretary,
Director. Animal Husbandry got conducted an inquiry into the
G appointments made by the then Regional Director, Animal ...
Husbandry, Gaya. In that inquiry, it was found that about 5 dozen
appointments were made without sanctioned posts and without
following the procedure prescribed vide circular dated 4.7.1987.
Thereafter, notices dated 3.5.2001 were issued to the
H respondents requiring them to show cause against the proposed
STATE OF BIHAR V. 877
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
termination of their services. In their replies, the respondents A
claimed that the Regional Director had appointed them after
due selection and that the enquiry got conducted by the Director,
Animal Husbandry cannot be made basis for terminating their
services after a gap of almost 10 years. After considering their
replies, the competent authority passed orders dated 23.5.2001 B
terminating the services of the respondents, who challenged
the same by filing a petition under Article 226 of the Constitution
of India, which was registered as CWJC No. 7816 of2001. The
respondents pleaded that the action taken against them was
vitiated due to violation of the rules of natural justice and arbitrary C
exercise of power because the concerned authority did not give
them the effective opportunity of hearing and the instruction
contained in memorandum dated 16.4.1996 could not have
been applied to their case because they had been appointed
prior to cut off date specified therein i.e. 28.10.1991. The D
appellant herein contested the writ petition by asserting that the
services of the writ petitioners were terminated because their
initial appointments were illegal.
6. The learned Single Judge relied upon the order passed
in CWJC No.5140 of 1998 and quashed the termination of the E
respondents' services with a direction that they be reinstated
with consequential benefits. Letters PatentAppeal No.61 of2007
• filed by the appellant was dismissed by the Division Bench on
the ground that similar appeals filed in the cases of Arun Kumar
and others and Arjun Chaudhary had already been dismissed. F
In the opinion of the Division Bench, a different view could not
be taken in the case of the respondents because that would
give rise to an anomalous situation.
7. Learned counsel for the appellant argued that the High
.J· Court committed serious error by ordering reinstatement of the G
respondents ignoring that their initial appointments were ex
facie illegal inasmuch as the concerned authority did not follow
any procedure consistent with the doctrine of equality enshrined
in Articles 14 and 16 of the Constitution as also the instructions
issued by the Government for making ad hoc appointments. H
878 SUPREME COURT REPORTS [2009] 4 S.C.R.
A Learned counsel emphasized that even while making ad hoc
appointment, the competent authority is required to advertise
the posts or at least send requisition to the employment
exchange and make selection from amongst the eligible
persons, but no such procedure was followed by the then
s Regional Director, Animal Husbandry, Gaya, before appointing
the respondents. Shri Nagendra Rai, learned senior counsel
appearing for the respondents submitted that the directions
given for reinstatement of his clients may not be disturbed
because other similarly situated persons have already been
c reinstated pursuant to the directions given by the High Court. To
buttress this submission, the learned senior counsel invited the ·
Court's attention to the orders passed in CWJC No.13328/1992
- Rangosh Sharma and others v. State of Bihar, CWJC
No.15571/2001 -Arjun Choudhary v. State of Bihar and others,
CWJC No.6554/2000 - Birendra Kumar Singh v. State of Bihar
0
and others, LPA No.325/2000 - State of Bihar and others v.
Arun Kumar and others and LPA No. 47/2006 - State of Bihar
and others v. Arjun Choudhary. Shri Rai then referred to the
averments contained in paragraph 4 of the counter-affidavit to
the Special Leave Petition to show that services of the
E respondents were regularized in 1992 and argued that the
concerned authority illegally terminated their services by
assuming that they were ad hoc appointees.
..
8. We have given serious thought to the entire matter and
F also gone through the statement furnished by learned counsel
for the appellant during the course of arguments. Equality of
opportunity to all irrespective of their caste, colour, creed, race,
religion and place of birth which constitutes one of the core
values of the Universal Declaration of Human Rights also forms
G part of preamble to the Constitution of India, which reads as
under:- ...
"WE, THE PEOPLE OF !NOIA, having solemnly resolved
to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC and to secure to
H all its citizens:
STATE OF BIHAR V. 879
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
-
• JUSTICE, social, economic and political; A
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all;
B
FRATERNITY assuring the dignity of the individual and
the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day
of November, 1949, do HEREBY ADOPT, ENACT AND
GIVE TO OURSELVES THIS CONSTITUTION." c
9. For achieving various goals set out in the preamble,
framers of the Constitution included a set of provisions in Part Ill
with the title "Fundamental Rights" and another set of provisions
in Part IV with the title "Directive Principles of State Policy".
D
The provisions contained in Part Ill of the Constitution by and
large contain negative injunctions against State's interference
with the fundamental rights of individuals and group of individuals
and also provide for remedy against violation of such rights by
direct access to the highest Court of the country. Part IV
E
enumerates State's obligation to make policies and enact laws
for ensuring that weaker segments (have nots) of the society
..i are provided with opportunities to come up to a level where
they can compete with others (haves).
10. The inclusion of a set of fundamental rights in India's F
Constitution had its genesis in the forces that operated in the
national struggle during British rule. Some essential rights like
personal freedom, protection of one's life and limb and of one's·
good name, derived from the common law and the principles of
~-
British jurisprudence, were well accepted and theoretically G
recognized by various British enactments. By way of illustration,
reference can be made to Section 87 of the Charter Act of 1883
wherein it was laid down that no native of the British India shall
by reason only of his religion, place of birth, descent, colour, or
any of them, be disabled from nolding any place, office or
H
880 SUPREME COURT REPORTS [2009) 4 S.C.R.
A employment under the Company. The substance of this provision
was incorporated in Section 96 of the Government of India Act.
1915. In the Government of India Act, 1935, the guarantee
against discrimination was reiterated and given extended
meaning. However, in pre-independence period there was no
B chapter of fundamental rights of a justiciable nature and even
the safeguards provided under various statutes could be taken
away by the British Parliament or a legislative authority in India
(The Framing of India's Constitution, Vol. II, edited by B. Shiva
Rao).
C 11. The Constituent Assembly which prepared draft of the
Constitution extensively debated on the necessity of having a
separate chapter relating to fundamental rights. The principle
of guaranteeing to every person equality before the law and the
equal protection of the laws, was first included in the drafts
D submitted to the Sub-Committee on Fundamental Rights by Shri
K.M. Munshi and Dr. B.R. Ambedkar. After discussing the matter
and considering the suggestions made by Shri B.N. Rau, Alladi
Krishnaswami Ayyar, Shri K. M. Munshi and others, the final draft
of Article 14 was adopted, which now reads as under:
E 'The State shall not deny to any person equality before the
law or the equal protection of the laws within the territory
of India."
.
The principle of non-discrimination on grounds of religion,
F race, colour, caste or language in the matter of public
employment was contained in the drafts submitted by Shri K.M.
Munshi and Dr. B.R. Ambedkar. Shri K.T. Shah and Shri Harnam
Singh also incorporated this basic principle in clauses 2 and 8
of their respective drafts. When the Sub-Committee on
G Fundamental Rights discussed the subject, Shri K.T. Shah
pre~ad 11is view that the Constitution should guarantee non-
..
discrimination, not only in "public employment" but also in
"employment in any enterprise aided or assisted by the State".
However, his suggestion was not accepted by the Sub-
committee. The issue was then debated in the context of
- H
STATE OF BIHAR V. 881
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
demand for incorporation of a clause enabNng the State to A
provide for reservation in favour of backward classes, etc. and
ultimately the draft was adopted (The Framing of India's
Constitution, Vol. II, edited by B. Shiva Rao). Clauses (4A) and
(48) were added to Article 16 by the Constitution (7ih
Amendment) Act, 1995. Article 16 in its present form reads as B
under:
"16. Equality of opportunity in matters of public
.. employment. - (1) There shall be equality of opportunity
for all citizens in matters relating to employment or
appointment to any office under the State. c
(2) No citizen shall, on grounds only of religion, race, caste,
sex, descent, place of birth, residence or any of them, be
ineligible for, or discriminated against in respect of, any
employment or office under the State.
D
(3) Nothing in this article shall prevent Parliament from
making any law prescribing, in regard to a class or classes
of employment or appointment to an office under the
Government of, or any local or other authority within, a
State or Union territory, any requirement as to residence E
within that State or Union territory prior to such employment
or appointment.
(4) Nothing in this article shall prevent the State from making
any provision for the reservation of appointments or posts
in favour of any backward class of citizens which, in the F
opinion of the State, is not adequately represented in the
services under the State.
(4A) Nothing in this article shall prevent the State from
making any provision for reservation in matters of G
promotion, with consequential seniority, to any class or
classes of posts in the services under the State in favour
of the Scheduled Castes and the Scheduled Tribes which,
in the opinion of the State, are not adequately represented
in the services under the State.
H
882 SUPREME COURT REPORTS [2009] 4 S.C.R
A (48) Nothing- in this article shall prevent the State from
considering any unfilled vacancies of a year which are •
reserved for being filled up in that year in accordance with
any provision for reservation made under clause (4) or
(4A) as a separate class of vacancies to be filled up in
B any succeeding year or years and such class of vacancies
shall not be considered together with the vacancies of the
year in which they are being filled up for determining the
ceiling of fifty per cent reservation on total number of that
year.
C (5) Nothing in this article shall affect the operation of any
law which provides that the incumbent of an office in
connection with the affairs of any religious or
denominational institution or any member of the governing
body thereof shall be a person professing a particular
D religion or belonging to a particular denomination."
12. In E.P. Royappa v. State of Tamil Nadu and others
[(1974) 4 SCC 3], the Constitution Bench negatived the
appellant's challenge to his transfer from the post of Chief
Secretary of the State to that of Officer on Special Duty. P.N.
E Bhagwati, J. (as His Lordship then was) speaking for himself,
Y.V. Chandrachud and V.R. Krishna Iyer, JJ. considered the ambit
and reach of Articles 14 and 16 and observed:
"Article 14 is the genus while Article 16 is one of its species.
F Article 14 declares that the State shall not deny any person
equality before the law or equal protection of the laws
within the territory of India. Article 16 gives effect to the
doctrine of equality in all matters relating to public
employment. Article 16 embodies the fundamental
guarantee that there shall be equality of opportunity for all
G
citizens in matters relating to employment or appointment
to any office under the State. No citizen shall be ineligible
for or discriminated against irrespective of any employment
or office under the State on the grounds only of religion,
race, caste, sex, descent. place of birth, residence or any
H
STATE OF BIHAR V. 883
UPENDRA NARAYAN SINGH & OTHER~ [G.S. SINGHVI, J.]
of them. Though, enacted as a distinct and independent A
fundamental right because of its great importance as a
principle ensuring equality of opportunity in public
employment which is so vital to the building up of the new
classless egalitarian society envisaged in the Constitution.
The basic principle which, therefore, informs both Articles B
14 and 16 is equality and inhibition against discrimination.
Now, what is the content and reach of this great equalising
principle? It is a founding faith, to use the words of Bose.
J., "a way of life'', and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot c
countenance any attempt to truncate its all-embracing
scope and meaning, for to do so would be to violate its
activist magnitude. Equality is a dynamic concept with
many aspects and dimensions and it cannot be "cribbed,
cabined and confined" within traditional and doctrinaire
D
limits. From a positivistic point of view, equality is antithetic
to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and E
is therefore violative of Article 14, and if it effects any
... matter relating to public employment, it is also violative of
Article 16. Articles 14 and 16 strike at arbitrariness in
State action and ensure fairness and equality of treatment."
F
13. The equality clause enshrined in Article 16 mandates
that every appointment to public posts or office should be made
by open advertisement so as to enable all eligible persons to
compete for selection on merit - Umesh Kumar Nagpal v. State
of Haryana and others [(1994) 4 SCC 138], Union Public G
Service Commission v. Girish Jayanti Lal Vaghela [(2006) 2
SCC 482], State of Manipur and others v. Y Token Singh and
others [(2007) 5 SCC 65] and Commissioner, Municipal
Corporation, Hyderabad and others v. P Mary Manoranjani
and another [(2008) 2 SCC 758]. Although, the Courts have H
884 SUPREME COURT REPORTS [2009] 4 S.C.R.
A carved out some exceptions to this rule, for example,
compassionate appointment of the dependent of deceased
employees, for the purpose of this case it is not necessary to
elaborate that aspect.
14. In Girish Jayanti Lal Vaghe/a's case, this Court, while
B reversing an order passed by the Central Administrative Tribunal
which had directed the Union Public Service Commission to
relax the age requirement in the respondent's case, elucidated
the meaning of the expression "equality of opportunity for all
•
citizens in matters relating to public employment" in the following
C words:
"Article 16 which finds place in Part 111 of the Constitution
relating to fundamental rights provides that there shall be
equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.
D
The main object of Article 16 is to create a constitutional
right to equality of opportunity and employment in public
offices. The words 'employment' or 'appointment' cover
not merely the initial appointment but also other attributes
of service like promotion and age of superannuation, etc.
E The appointment to any post under the State can only be
made after a proper advertisement has been made inviting
applications from eligible candidates and holding of
selection by a body of experts or a specially constituted •
committee whose members are fair and impartial through
F a written examination or interview or some other rational
criteria for judging the inter se merit of candidates who
have applied in response to the advertisement made. A
regular appointment to a post under the State or Union
cannot be made without issuing advertisement in the
G prescribed manner which may in some cases include
inviting applications from the employment exchange where
eligible candidates get their names registered. Any regular
appointment made on a post under the State or Union
without issuing advertisement inviting applications from
H eligible candidates and without holding a proper selection
STATE OF BIHAR V. 885
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J]
... where all eligible candidates get a fair chance to compete A
would violate the guarantee enshrined under Article 16 of
the Constitution."
15. For ensuring that equality of opportunity in matters
relating to employment becomes a reality for all, Parliament
enacted the Employment Exchanges (Compulsory Notification 8
of Vacancies) Act, 1959 (for short 'the 1959 Act'). Section 4 of
' that Act casts a duty on the employer in every establishment in
• public sector in the State or a part thereof to notify every vacancy
to the employment exchange before filling up the same. In Union
of India and others v. N. Hargopal and others [(1987) 3 sec c
308], a two-Judge Bench of this Court considered the question
whether persons not sponsored by the employment exchange
could be appointed to the existing vacancies. The High Court
of Andhra Pradesh had ruled that the provisions of 1959 Act
) are not applicable to Government establishment; that the Act D
does not cast duty either on the public sector establishment or
on the private sector establishment to make the appointments
from among candidates sponsored by the employment
exchanges only, and that instructions issued by the Government
of India that candidates sponsored by the employment E
exchanges alone should be appointed are contrary to Articles
.. 14 and 16. This Court referred to Sections 3 and 4 of the 1959
Act, adverted to the reasons enumerated in the counter-affidavit
filed on behalf of the Union of India before the High Court to
justify the appointments only from among the candidates F
sponsored by the employment exchange and held:
" ......... The object of recruitment to any service or post is
to secure the most suitable person who answers the
demands of the requirements of the job. In the case of
.;.
public employment, it is necessary to eliminate G
arbitrariness and favouritism and introduce uniformity of
standards and orderliness in the matter of employment.
There has to be an element of procedural fairness in
recruitment. If a public employer chooses to receive
applications for employment where and when he pleases, H
886 SUPREME COURT REPORTS [2009] 4 S.C.R.
A and chooses to make appointments as he likes, a grave ..
element of arbitrariness is certainly introduced. This must
necessarily be avoided if Articles 14 and 16 have to be
given any meaning. We, therefore, consider that insistence
on recruitment through Employment Exchanges advances
B rather than restricts the rights guaranteed by Articles 14
and 16 of the Constitution. The submission that
Employment Exchanges do not reach everywhere applies
equally to whatever method of advertising vacancies is
adopted. Advertisement in the daily press, for example, is
c also equally ineffective as it does not reach everyone
desiring employment. In the absence of a better method
of recruitment, we think that any restriction that employment
in government departments should be through the medium
of employment exchanges does not offend Articles 14
and 16 of the Constitution."
D
In Excise Superintendent, Malkapatnam, Krishna District,
A.P v. K.8 N. Visweshwara Rao and others [(1996) 6 SCC 216],
a three-Judge Bench while reiterating that the requisitioning
authority/establishment must send intimation to the employment
E exchange and the latter should sponsor the names of candidates,
observed:
" .... It is common knowledge that many a candidate is .
unable to have the names sponsored, though their names
are either registered or are waiting to be registered in the
F employment exchange, with the result that the choice of
selection is restricted to only such of the candidates whose
names come to be sponsored by the employment
exchange. Under these circumstances, many a deserving
candidate is deprived of the right to be considered for
G appointment to a post under the State. Better view appears ...
to be that it should be mandatory for the requisitioning
authority/establishment to intimate the employment
exchange, and employment exchange should sponsor the
names of the candidates to the requisitioning departments
H for selection strictly according to seniority and reservation,
STATE OF BIHAR V. 887
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
,. as per requisition. In addition, the appropriate department A
or undertaking or establishment should call for the names
by publication in the newspapers having wider circulation
and also display on their office notice boards or announce
on radio, television and employment news bulletins; and
then consider the cases of all the candidates who have B
applied. If this procedure is adopted, fair play would be
subserved. The equality of opportunity in the matter of
~
employment would be available to all eligible candidates."
The same principle was reiterated in Arun Kumar Nayak
v. Union of India and others [(2006) 8 SCC 111] in the following c
words:
"This Court in Visweshwara Rao, therefore, held that
intimation to the employment exchange about the vacancy
and candidates sponsored from the employment exchange
D
is mandatory. This Court also held that in addition and
consistent with the principle of fair play, justice and equal
opportunity, the appropriate department or establishment
should also call for the names by publication in the
newspapers having wider circulation, announcement on
radio, television and employment news bulletins and E
consider all the candidates who have applied. This view
,., was taken to afford equal opportunity to all the eligible
candidates in the matter of employment. The rationale
behind such direction is also consistent with the sound
public policy that wider the opportunity of the notice of F
vacancy by wider publication in the newspapers, radio,
television and employment news bulletin, the better
candidates with better qualifications are attracted, so that
adequate choices are made available and the best
candidates would be selected and appointed to subserve G
the public interest better."
16. The ratio of the above noted three judgments is that in
terms of Section 4 of the 1959 Act, every public employer is
duty bound to notify the vacancies to the concerned employment
H
888 SUPREME COURT REPORTS [2009] 4 S C.R
A exchange so as to enable it to sponsor the names of eligible
candidates and also advertise the same in the newspapers
having wider circulation, employment news bulletins, get
announcement made on radio and television and consider all
eligible candidates whose names may be forwarded by the
B concerned employment exchange and/or who may apply
pursuant to the advertisement published in the newspapers or
announcements made on radio/television.
17. Notwithstanding the basic mandate of Article 16 that •
there shall be equality of opportunity for all citizens in matters
'
c relating to employment for appointment to any office under the l'·
State, the spoil system which prevailed in America in 1ih and
18th centuries has spread its tentacles in various segments of
public employment apparatus and a huge illegal employment
market has developed in the country adversely affecting the legal
D and constitutional rights of lakhs of meritorious r, 1embers of
younger generation of the country who are forced to seek
intervention of the court and wait for justice for years together.
SPOIL SYSTEM -A BIRD'S EYE VIEW: ~
E 18. In 1ih and 18th centuries a peculiar system of
employment prevailed in America. Under that system, leaders
of the political party which came to power considered it to be
their prerogative to appoint their faithful followers to public offices •
and remove those who did not support the party. The system
F was developed in New York and Pennsylvania more than
elsewhere, largely because of the existence in those States of
a large body of apathetic non-English voters. In New York, the
ill-devised council of appointment had much to do with the growth
of this system. In the Federal Government, Jefferson
implemented this system to a large extent The prescription of
G
a four year term for various offices considerably increased
appointment of political faithfuls to public offices and positions.
The politicians who surrounded Jackson brought this system to
its full development as an engine of party warfare. Since then it
became a regular feature in every administration. The phrase
H
STATE OF BIHAR V. 889
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
'spoil system' was derived from the statement of Senator W L A
Marcy of New York, in a speech in the Senate in 1832. Speaking
of the New York politicians, he said: 'They see nothing wrong in
the rule that to the victor belong the spoils of the enemy'. By
1840, the spoil system was widely used in Local, State and
Federal governments. As a result of this, America fell far behind B
other nations in civil service standards of ability and rectitude.
When William Henry Harrison became President in 1841, the
practice of appointing political followers reached its pinnacle .
• Between 30,000 and 40,000 office-seekers converged on the
capital to scramble for 23, 700 jobs which then comprised the c
federal service. Numerous persons hired through the spoil
system were untrained for their work and indifferent to it. In the
early days, government work was simple. However, as
government grew, a serious need for qualified workers
developed. After Civil War, pressure started building up for
0
reforms in recruitment to civil services. The gross scandals of
President Ulysses S. Grant's administration lent credence to
the efforts of reformers George W. Curtis, Dorman 8. Eaton
and Carl Schurz. In 1871, Congress authorized the President
to make regulations for appointment to public services and to
constitute Civil Service Commission for that purpose. However, E
this merit system ended in 1875 because the Congress failed
to provide funds for the same. Nevertheless, the experiment
proved the merit system to be both functional and supportive.
President Rutherford 8. Hayes was enamored of reform and
began to use competitive examinations as a basis for F
appointments. In 1881, a spurned office-seeker shot and killed
President James A. Garfield. His death provoked further public
outcry for civil service reform and paved way for passage of a
bill introduced by Sen. George H. Pendleton of Ohio. His bill
became the Civil Service Act of 1883 and re-established the G
Civil Service Commission. The Act rendered it unlawful to fill
various federal offices by the spoil system. Since then, much
has been done to avoid the evils of the system. Federal civil
service legislation has been greatly expanded. Many
municipalities and states have made training and experience H
890 SUPREME COURT REPORTS [2009] 4 S.C.R.
A as a conditioo precedent for appointment to public offices. In ..
the territories of India ruled by Britishers also a large chunk of
jobs went to the faithfuls of Britishers who were considered fit
for serving British interest.
.
19. With a view to insulate the public employment apparatus
B in independent India from the virus of spoil system, the framers
of the Constitution not only made equal opportunity in the matter
of public employment as an integral part of the fundamental rights
guaranteed to every citizen but also enacted a separate part, •
i.e., Part XIV with the title "Services under the Union and the
c States". Article 309 which finds place in Chapter I of this part
envisages enactment of laws by the Parliament and the State
Legislatures for regulating the recruitment and conditions of
service of persons appointed to public services and posts in
connection with the affairs of the Union or of any State. Proviso
D to this Article empowers the President or such person as he
may direct in the case of services and posts in connection with
the affairs of the Union and the Governor of a State or such
person as he may direct in the case of services and posts and
in connection with the affairs of State, to make rules regulating
the recruitment, and the conditions of service of persons
E
appointed, to such services and posts till the enactment of law
by the appropriate legislature. Article 311 which also finds place
in the same chapter gives protection to the holders of civil posts
against dismissal, removal or reduction in rank by an authority
subordinate to the one by which they are appointed. This Article
F also provides that an order of dismissal, removal or reduction
in rank can be passed only after holding an inquiry and giving
reasonable opportunity of hearing to the affected person. The
provisions contained in Chapter II of Part XIV relate to Public
Service Commissions. Article 315 mandates that there shall
G be a Public Service Commission for the Union and a Public
Service Commission for each State. Article 320(1) casts a duty
on the Union and the State Public Service Commissions to
conduct examinations for appointments to the services of the
Union and the State respectively. Clause 3 of Article 320 makes
H consultation with Union Public Service Commission, or the State
STATE OF BIHAR V. 891
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
Public Service Commission, as the case may be mandatory on A
all matters relating to methods of recruitment to civil services
and for civil posts, on the principles to be followed in making
appointments to civil services and posts and in making
promotions and transfers from one service to another and on
the suitability of candidates for such appointments, promotions B
or transfers, on all disciplinary matters affecting a person serving
under the Government of India or the Government of a State in a
civil capacity, including memorials or petitions relating to such
• matters, on any claim by or in respect of a person who is serving
or has served under the Government of India or the Government
of a State or under the Crown in India or under the Government c
of an Indian State, in a civil capacity, that any costs incurred by
him in defending legal proceedings instituted against him in
respect of acts done or purporting to be done in the execution
of his duty should be paid out of the Consolidated Fund of India,
or, as the case may be, out of the Consolidated Fund of the D
State, on any claim for the award of a pension in respect of
injuries sustained by a person while serving under the
Government of India or the Government of a State or under the
Crown in India or under the Government of an Indian State, in a
civil capacity, and any question as to the amount of any such E
award. This clause also casts a duty on the Public Service
Commissions to advise on any matter referred to them by the
... President or the Governor.
20. However, the hope and expectation of the framers of
the Constitution that after independence every citizen will get F
equal opportunity in the matter of employment or appointment
to any office under the State and members of civil services would
remain committed to the Constitution and honestly serve the
people of this country have been belied by what has actually
~ happened in last four decades. The Public Service G
Commissions which have been given the status of
Constitutional Authorities and which are supposed to be totally
independent and impartial while discharging their function in
terms of Article 320 have become victims of spoil system. In the
beginning, people with the distinction in different fields of
H
892 SUPREME COURT REPORTS [2009] 4 S.C.R.
A administration and social life were appointed as Chairman and
members of the Public Service Commissions but with the
passage of time appointment to these high offices became
personal prerogatives of the political head of the Government
and men with questionable background have been appointed
8 to these coveted positions. Such appointees have, instead of
making selections for appointment to higher echelons of
services on merit, indulged in exhibition of faithfulness to their
mentors totally unmindful of their Constitutional responsibility.
This is one of several reasons why most meritorious in the •
academics opt for private employment and ventures. The
C scenario is worst when it comes to appointment to lower strata
of the civil services. Those who have been bestowed with the
power to make appointment on Class Ill and Class IV posts
have by and large misused and abused the same by violating
relevant rules and instructions and have indulged in favouritism
D and nepotism with impunity resulting in total negation of the
equality clause enshrined in Article 16 of the Constitution.
Thousands of cases have been filed in the Courts by aggrieved
persons with the complaints that appointment to Class Ill and
Class IV posts have been made without issuing any
E advertisement or sending requisition to the employment
exchange as per the requirement of the 1959 Act and those
who have links with the party in power or political leaders or
who could pull strings in the power corridors get the cake of .
employment. Cases have also been filed with the complaints
F that recruitment to the higher strata of civil services made by
the Public Service Commissions have been affected by the virus
of spoil system in different dimensions and selections have been
made for considerations other than merit.
21. Unfortunately, some orders passed by the Courts have
G also contributed to the spread of spoil system in this country.
The judgments of 1980s and early 1990s show that this Court ·•
gave expanded meaning to the equality clause enshrined in
Articles 14 and 16 and issued directions for treating temporary/
ad hoc/daily wage employees at par with regular employees in
H the matter of payment of salaries etc. The schemes framed by
STATE OF BIHAR V. 893
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
. the Governments and public bodies for regularization of illegally A
appointed temporary/ad hoc/daily wage/casual employees got
approval of the Courts. In some cases, the Courts also directed
the State and its instrumentalities/agencies to frame schemes
for regularization of the services of such employees. In State of
Haryana v. Piara Singh [(1992) 4 SCC 118], this Court B
reiterated that appointment to the public posts should ordinarily
be made by regular recruitment through the prescribed agency
.Y and that even where ad hoc or temporary employment is
necessitated on account of the exigencies of administration,
the candidate should be drawn from the employment exchange c
and that if no candidate is available or sponsored by the
employment exchange, some method consistent with the
requirements of Article 14 of the Constitution should be followed
by publishing notice in appropriate manner calling for
applications and all those who apply in response thereto should
• be considered fairly, but proceeded to observe that if an ad hoc
D
or temporary employee is continued for a fairly long spell, the
authorities are duty bound to consider his case for regularization
subject to his fulfilling the conditions of eligibility and the
requirement of satisfactory service. The propositions laid down
in Piara Singh's case (supra) were followed by almost all High E
Courts for directing the concerned State Governments and
... public authorities to regularize the services of ad hoc/temporary/
daily wage employees only on the ground that they have
continued for a particular length of time. In some cases, the
< schemes framed for regularization of the services of the F
backdoor entrants were also approved. As a result of this,
beneficiaries of spoil system and corruption garnered substantial
share of Class Ill and Class IV posts and thereby caused
irreparable damage to the service structure at the lower levels .
... Those appointed by backdoor methods or as a result of G
favoritism, nepotism or corruption do not show any commitment
to their duty as public servant. Not only this, majority of them are
found to be totally incompetent or inefficient.
22. In Delhi Development Horticulture Employees Union
H
894 SUPREME COURT REPORTS [2009] 4 S.C.R.
I-
A v. Delhi Administration, Delhi and others [(1992) 4 SCC 99],
the Court took cognizance of the illegal employment market
which has developed in the country and observed:
"Apart from the fact that the petitioners cannot be directed
to be regularised for the reasons given above, we may
B take note of the pernicious consequences to which the
direction for regularisation of workmen on the only ground
that they have put in work for 240 or more days, has been
leading. Although there is an Employment Exchange Act •
which requires recruitment on the basis of registration in
c the Employment Exchange, it has become a common
practice to ignore the Employment Exchange and the
persons registered in the Employment Exchanges, and to
employ and get employed directly those who are either
not registered with the Employment Exchange or who
D though registered are lower in the long waiting list in the
Employment Register. The courts can take judicial notice •
of the fact that such employment is sought and given
directly for various illegal considerations including money
The employment is given first for temporary periods with
E technical breaks to circumvent the relevant rules, and is
continued for 240 or more days with a view to give the
benefit of regularization knowing the judicial trend that
those who have completed 240 or more days are directed
to be automatically regularized. A good deal of illegal
F employment market has developed resulting in a new
source of corruption and frustration of those who are
waiting at the Employment Exchanges for years. Not all
those who gain such backdoor entry in the employment
are in need of the particular jobs. Though already
employed elsewhere, they join the jobs for better and
G
secured prospects. That is why most of the cases which ..
come to the courts are of employment in government
departments, public undertakings or agencies.
Ultimately it is the people who bear the h"eavy burden of
the surplus labour The other equally injurious effect of
H
STATE OF BIHAR V. 895
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
indiscriminate regularization has been that many of the A
agencies have stopped undertaking casual or temporary
works though they are urgent and essential for fear that if
those who are employed on such works are required to
be continued for 240 or more days they have to be
absorbed as regular employees although the works are B
time-bound and there is no need of the workmen beyond
the completion of the works undertaken. The public
interests are thus jeopardised on both counts."
(emphasis added)
c
23. In State of UP and others v. UP State Law Officers
Association and others [(1994) 2 SCC 204], this Court
examined the correctness of an order passed by Allahabad High
Court quashing the termination of the services of 26 law officers
and appointment of new law officers. After noticing the provisions
0
of Legal Remembrancer's Manual which regulate appointment
of Government counsel in the State of U.P. and the manner in
which the respondents were appointed, this Court reversed the
order of the High Court and observed:
"It would be evident from Chapter V of the said Manual E
that to appoint the Chief Standing Counsel, the Standing
Counsel and the Government Advocate, Additional
Government Advocate, Deputy Government Advocate and
Assistant Government Advocate, the State Government is
under no obligation to consult even its Advocate-General F
much less the Chief Justice or any of the ju,dges of the
High Court or to take into consideration, the views of any
committee that "may" be constituted for the purpose. The
State Government has a discretion. It may or may not
ascertain the views of any of them while making the said G
,..
appointments. Even where it chooses to consult them,
their views are not binding on it. The appointments may,
therefore, be made on considerations other than merit
and there exists no provision to prevent such appointments.
The method of appointment is indeed not calculated to H
896 SUPREME COURT REPORTS [2009] 4 S.C.R.
A ensure that the meritorious alone will always be appointed
or that the appointments made will not be on
considerations other than merit. In the absence of
guidelines, the appointments may be made purely on
personal or political considerations, and be arbitrary. This
B being so those who come to be appointed by such arbitrary
procedure can hardly complain if the termination of their
appointment is equally arbitrary. Those who come by the
back door have to go by the same door. This is more so (
when the order of appointment itself stipulates that the
c appointment is terminable at any time without assigning
any reason. Such appointments are made, accepted and
understood by both sides to be purely professional
engagements till they last. The fact that they are made by
public bodies cannot vest them with additional sanctity.
Every appointment made to a public office, howsoever
D
made, is not necessarily vested with public sanctity. There
is, therefore, no public interest involved in saving all
appointments irrespective of their mode. From the
inception some engagements and contracts may be the
product of the operation of the spoils system. There need
E be no legal anxiety to save them."
[emphasis added)
24. Notwithstanding the critical observations made in Delhi
Development Horticulture Employees Union vs. Delhi
F Administration, Delhi and others (supra) and State of UP and
others v. UP State Law Officers Association and others (supra),
illegal employment market continued to grow in the country and
those entrusted with the power of making appointment and those
who could pull strings in the corridors of power manipulated the
G system to ensure that their favourites get employment in
complete and contemptuous disregard of the equality clause
enshrined in Article 16 of the Constitution and Section 4 of the
1959 Act. However, the Courts gradually realized that
unwarranted sympathy shown to the progenies of spoil system
H has eaten into the vitals of service structure of the State and
STATE OF BIHAR V. 897
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
public bodies and this is the reason why relief of reinstatement A
and/or regularization of service has been denied to illegal
appointees/backdoor entrants in large number of cases -
Director, Institute of Management Development, UP. v.
Pushpa Srivastava [(1992) 4 SCC 33], Dr. M.A. Haque and
others v. Union of India and others [(1993) 2 SCC 213], J & K B
Public Service Commission and others v. Or. Narinder Mohan
and others [(1994) 2 SCC 630], Dr. Arundhati Ajit Pargaonkar
> v. State of Maharashtra and others [1994 Suppl. (3) SCC 380],
Union of India and others v. Kishan Gopa/ Vyas [(1996) 7 SCC
134], Union of India v. Moti Lal [(1996) 7 SCC 481], Hindustan c
Shipyard Ltd. and others v. Or. P Sambasiva Rao and others
[(1996) 7 SCC 499], State of HP v. Suresh Kumar Verma and
another [(1996) 7 SCC 562], Dr. Surinder Singh Jamwa/ and
another v. State of J&K and others [(1996) 9 sec 619], E.
Ramakrishnan and others v. State of Kera/a and others [(1996)
•· D
10 SCC 565], Union of India and others vs. Bishambar Dutt
[1996 (11) SCC 341], Union of India and others v. Mahender
Singh and others [1997 (1) SCC 245], P Ravindran and others
v. Union Territory of Pondicherry and others [1997 (1) SCC
350], Ashwani Kumar and others v. State of Bihar and others
[1997 (2) SCC 1], Santosh Kumar Verma and others v. State E
of Bihar and others [( 1997) 2 sec 713], State of U. P and others
vs. Ajay Kumar [(1997) 4 SCC 88], Patna University and
another v. Or. Arnita iiwari [(1997) 7 SCC 198] and Madhyamik
Shiks ha Paris had, U. P v. Anil Kumar Mishra and others
[(2005) 5 sec 1221. F
25. In A. Umarani v. Registrar, Coop. Societies and others
[(2004) 7 SCC 112], a three-Judge Bench held that when
appointments were made in contravention of mandatory
.... provisions of the Act and statutory rules framed thereunder and
G
by ignoring essential qualifications, the appointments would be
- illegal and cannot be regularised by the State and that the State
cannot invoke its power under Article 162 of the Constitution to
regularise such appointments. The Court further held that
regularisation is not and cannot be a mode of recruitment by
H
898 SUPREME COURT REPORTS (2009] 4 S.C.R.
A any State within the meaning of Article 12 of the Constitution or
any body or authority governed by a statutory Act or the rules
framed thereunder and the fact that some persons had been
working for a long time would not mean that they had acquired
a right for regularisation.
B 26. In Secretary, State of Karnataka vs. Uma Devi [2006
(4) SCC 1], the Constitution Bench considered different facets
of the issue relating to regularization of services of ad hoc/
temporary/daily wage employees and unequivocally ruled that
such appointees are not entitled to claim regularization of service
C as of right. After taking cognizance of large scale irregularities
committed in appointment at the lower rungs of the services
and noticing several earlier decisions, the Constitution Bench
observed:
"The Union, the States., their departments and
D
instrumentalities have resorted to irregular appointments,
especially in the lower rungs of the service, without
reference to the duty to ensure a proper appointment
procedure through the Public Service Commissions or
otherwise as per the rules adopted and to permit these
E irregular appointees or those appointed on contract or on
daily wages, to continue year after year, thus, keeping out
those who are qualified to apply for the post concerned
•
and depriving them of an opportunity to compete for the
post. It has also led to persons who get employed, without
F the following of a regular procedure or even through the
backdoor or on daily wages, approaching the courts,
seeking directions to make them permanent in their posts
and to prevent regular recruitment to the posts concerned.
The courts have not always kept the legal aspects in mind
G and have occasionally even stayed the regular process of
-
employment being set in motion and in some cases, even
directed that these illegal, irregular or improper entrants
be absorbed into service. A class of employment which
can only be called "litigious employment", has risen like a
H phoenix seriously impairing the constitutional scheme.
STATE OF BIHAR V. 899
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.)
Such orders are passed apparently in exercise of the wide A
powers under Article 226 of the Constitution. Whether the
wide powers under Article 226 of the Constitution are
intended to be used for a purpose certain to defeat the
concept of social justice and equal opportunity for all,
subject to affirmative action in the matter of public B
employment as recognised by our Constitution, has to be
seriously pondered over. It is time that the courts desist
from issuing orders preventing regular selection or
> recruitment at the instance of such persons and from
issuing directions for continuance of those who have not c
secured regular appointments as per procedure
established. The passing of orders for continuance tends
to defeat the very constitutional scheme of public
employment. It has to be emphasised that this is not the
role envisaged for the High Courts in the scheme of things
0
and their wide powers under Article 226 of the Constitution
are not intended to be used for the purpose of perpetuating
illegalities, irregularities or improprieties or for scuttling
the whole scheme of public employment. Its role as the
sentinel and as the guardian of equal rights protection
should not be forgotten." E
"This Court has also on occasions issued directions which
could not be said to be consistent with the constitutional
scheme of public employment. Such directions are issued
presumably on the basis of equitable considerations or F
individualisation of justice. The question arises, equity to
whom? Equity for the handful of people who have
approached the court with a claim, or equity for the teeming
millions of this country seeking employment and seeking
a fair opportunity for competing for employment? When G
one side of the coin is considered, the other side of the
coin has also to be considered and the way open to any
court of law or justice, is to adhere to the law as laid down
by the Constitution and not to make directions, which at
times, even if do not run counter to the constitutional
H
900 SUPREME COURT REPORTS [2009] 4 S.C.R.
A scheme, certainly tend to water down the constitutional ...
requirements. It is this conflict that is reflected in these
cases referred to the Constitution Bench."
While repelling the argument based on equity, the
Constitution Bench observed:
B
" .... .But the fact that such engagements are resorted to,
cannot be used to defeat the very scheme of public
employment. Nor can a court say that the Union or the ..
State Governments do not have the right to engage
c persons in various capacities for a duration or until the
work in a particular project is completed. Once this right
of the Government is recognised and the mandate of the
constitutional requirement for public employment is
respected, there cannot be much difficulty in coming to
the conclusion that it is ordinarily not proper for the Courts
D
whether acting under Article 226 of the Constitution or
under Article 32 of the Constitution, to direct absorption
in permanent employment of those who have been
engaged without following a due process of selection as
envisaged by the constitutional scheme.
E
What is sought to be pitted against this approach, is the
so-called equity arising out of giving of temporary
...
employment or engagement on daily wages and the
continuance of such persons in the engaged work for a
F certain length of time. Such considerations can have only
a limited role to play, when every qualified citizen has a
right to apply for appointment, the adoption of the concept
of rule of law and the scheme of the Constitution for
appointment to posts. It cannot also be forgotten that it is
not the role of the courts to ignore, encourage or approve
G
appointments made or engagements given outside the
constitutional scheme. In effect, orders based on such
sentiments or approach would result in perpetuating
illegalities and in the jettisoning of the scheme of public
employment adopted by us while adopting the Constitution.
H
STATE OF BIHAR V. 901
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
The approving of such acts also results in depriving many A
of their opportunity to compete for public employment. We
have, therefore, to consider the question objectively and
based on the constitutional and statutory provisions."
[emphasis added]
B
The Constitution Bench then considered whether in
exercise of power under Article 226 of the Constitution, the High
Court could entertain claim for regularization and/or continuance
in service made by those appointed without following the
procedure prescribed in the rules or who are beneficiaries of c
illegal employment market and held:
"Thus, it is clear that adherence to the rule of equality in
public employment is a basic feature of our Constitution
and since the rule of law is the core of our Constitution, a
court would certainly be disabled from passing an order D
upholding a violation of Article 14 or in ordering the
overlooking of the need to comply with the requirements
of Article 14 read with Article 16 of the Constitution.
Therefore, consistent with the scheme for public
employment, this Court while laying down the law, has E
necessarily to hold that unless the appointment is in terms
of the relevant rules and after a proper competition among
qualified persons, the same would not confer any right on
the appointee. If it is a contractual appointment, the
appointment comes to an end at the end of the contract, F
if it were an engagement or appointment on daily wages
or casual basis, the same would come to an end when it
is discontinued. Similarly, a temporary employee could
not claim to be made permanent on the expiry of his term
of appointment. It has also to be clarified that merely G
because a temporary employee or a casual wage worker
is continued for a time beyond the term of his appointment,
he would not be entitled to be absorbed in regular service
or made permanent, merely on the strength of such
continuance, if the original appointment was not made by
H
902 SUPREME COURT REPORTS [2009] 4 S.C.R.
A following a due process of selection as envisaged by the
relevant rules. It is not open to the court to prevent regular
recruitment at the instance of temporary employees whose
period of employment has come to an end or of ad hoc
employees who by the very nature of their appointment,
B do not acquire any right. The High Courts acting under
Article 226 of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent
continuance unless the recruitment itself was made •
regularly and in terms of the constitutional scheme. Merely
c because an employee had continued under cover of an
order of the court, which we have described as "litigious
employment" in the earlier part of the judgment, he would
not be entitled to any right to be absorbed or made
permanent in the service. In fact, in such cases, the High
Court may not be justified in issuing interim directions,
D
since, after all, if ultimately the employee approaching it is
found entitled to relief, it may be possible for it to mould
the relief in such a manner that ultimately no prejudice will
be caused to him, whereas an interim direction to continue
his employment would hold up the regular procedure for
E selection or impose on the State the burden of paying an
employee who is really not required. The courts must be
careful in ensuring that they do not interfere unduly with the
economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to
F facilitate the bypassing of the constitutional and statutory
mandates.
It is contended that the State action in not regularising the
employees was not fair within the framework of the rule of
law. The rule of law compels the State to make
G
appointments as envisaged by the Constitution and in the
manner we have indicated earlier. In most of these cases,
no doubt, the employees had worked for some length of
time but this has also been brought about by the pendency
of proceedings in tribunals and courts initiated at the
H
STATE OF BIHAR V. 903
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
.... instance of the employees. Moreover, accepting an A
argument of this nature would mean that the State would
be permitted to perpetuate an illegality in the matter of
.public employment and that would be a negation of the
constitutional scheme adopted by us, the people of India.
It is therefore not possible to accept the argument that B
there must be a direction to make permanent all the persons
employed on daily wages. When the court is approached
~
for relief by way of a writ, the court has necessarily to ask
itself whether the person before it had any legal right to be
enforced. Considered in the light of the very clear c
constitutional scheme, it cannot be said that the employees
have been able to establish a legal right to be made
permanent even though they have never been appointed
in terms of the relevant rules or in adherence of Articles 14
and 16 of the Constitution.
.. The argument that the right to life protected by Article 21
D
of the Constitution would include the right to employment
cannot also be accepted at this juncture. The law is
dynamic and our Constitution is a living document. May
be at some future point of time, the right to employment E
can also be brought in under the concept of right to life or
even included as a fundamental right. The new statute is
... perhaps a beginning. As things now stand, the acceptance
of such a plea at the instance of the employees before us
would lead to the consequence of depriving a large number F
of other aspirants of an opportunity to compete for the
post or employment. Their right to employment, if it is a
part of right to life, would stand denuded by the preferring
of those who have got in casually or those who have come
through the backdoor. The obligation cast on the State
... under Article 39(a) of the Constitution is to ensure that all
G
citizens equally have the right to adequate means of
livelihood. It will be more consistent with that policy if the
courts recognise that an appointment to a post in
government service or in the service of its instrumentalities,
H
904 SUPREME COURT REPORTS [2009] 4 S.C.R.
A can only be by way of a proper selection in the manner
recognised by the relevant legislation in the context of the
relevant provisions of the Constitution. In the name of
individualising justice, it is also not possible to shut our
eyes to the constitutional scheme anu the right of the
B numerous as against the few who are before the court.
The directive principles of State policy have also to be
reconciled with the rights available to the citizen under
Part Ill of the Constitution and the obligation of the State
to one and all and not to a particular group of citizens. We,
c therefore, overrule the argument based on Article 21 of
the Constitution."
27. In the light of above, we shall now consider whether
the High Court was justified in directing reinstatement of the
respondents with consequential benefits. In the writ petition filed
D by them, the respondents herein made a bald assertion that
they were appointed by the competent authority after following
the prescribed procedure and pleaded that their services could
noc have been terminated in the garb of implementing the policy
contained in latter dated 16.4.1996 overlooking the fact that they
E had been appointed prior to the cut off date, i.e., 28.10.1991
and the fact that they had continuously worked for almost 10
years. On behalf of the appellants herein, it was submitted that
the writ petitioners should not be granted any relief because ..
their initial appointments were per se illegal inasmuch as the
F concerned Regional Director had neither advertised the posts
nor any requisition was sent to the employment exchange and
there was no consideration of the competing claims of eligible
persons.
28. In view of the contradictory assertions made by the
G parties on the issue of legality .of the respondents' initial ..,.
appointment, the minimum which the learned Single Judge
should have done was to call upon the respondents to produce
copies of the advertisement issued by the competent authority
and/or requisition sent to the employment exchange and letters
H of interview, if any, issued to them to prove that they were
STATE OF BIHAR V. 905
UPENORA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
appointed by following a fair procedure and after.considering A
the claims of all eligible persons. However, without making any
endeavour to find out whether the appointments of the
respondents were made after following some procedure
consistent with the doctrine of equality, the learned Single Judge
qµashed the termination of their services simply by relying upon B
· the order passed in another case and by observing that the writ
petitioners (respondents herein) had been appointed before the
.>
cut off date i.e. 28.10.1991 specified in letter dated 16.4.1996
and they had worked for almost 10 years.
29. In the Letters Patent Appeal filed by them, the appellants
c
reiterated that the respondents had been appointed without
following any procedure and without any selection. They also
contended that even though vacant posts were not available,
the then Regional Director, Gaya made large number of illegal
• D
appointments and this fact was established in the enquiry got
conducted by the department. However, the Division Bench did
not deal with the issues raised in the appeal and dismissed the
same by making reference to the orders passed in LPA No.325/
2000, Civil Review No.279/2000 and LPA No.47/2005 and
E
observing that taking different view in the case of the respondents
could lead to an anomalous position inasmuch as some persons
.. would get back into service on the strength of the court's order
while others will be thrown out.
30. At the hearing of this appeal, we asked the learned F
senior counsel appearing for the respondents to show that
before appointing his clients on ad hoc basis, the then Regional
Director, Gaya had issued an advertisement and/or sent
requisition to the employment exchange and made selection
~·
after considering competing claims of the eligible candidates G
but he could not draw our attention to any document from which
it could be inferred that the respondents were appointed after
advertising the posts or by adopting some other method which
could enable other eligible persons to at least apply for being
considered for appointment. He, however, submitted that issue H
1~--
906 SUPREME COURT REPORTS [2009] 4 S.C.R.
'-
A relating to legality of the initial appointments of the respondents :-
has become purely academic and this Court need not go into
the same because their services had been regularised by the
competent authority in 1992.
3·1. In our opinion, there is no merit in the submission of
B
the learned senior counsel. If the initial appointments of the
respondents are found to be illegal per se, the direction given ii
by the High Court for their reinstatement with consequential ~
benefits cannot be approved by relying upon the so-called
regularization of their services. Had the respondents been
c appointed by the competent authority after issuing an
advertisement or sending requisition to the employment
exchange so as to enable the latter to sponsor the names of ""',.
eligible persons then they would have certainly produced the
relevant documents before the High Court or at least before •
D
this Court. However, the fact of the matter is that none of the
documents which could give a semblance of legitimacy to the
appointments of the respondents was produced before the High
Court and none has been produced before this Court. The report !
'
of enquiry held against Dr. Darogi Razak, the then Regional
E
Director, Gaya (a copy of the report has been placed before
this Court in the form of additional document) bears ample
testimony of manipulations made by the officer in making •
appointment on Class Ill and Class IV posts. So much so, with a
view to remove every trace of the illegality committed by him,
F
Dr. Darogi Razak ensured disappearance of all the papers
relating to appointment from his office. A reading of the enquiry
report shows that in all the following five charges were leveled
against Dr. Darogi Razak:
.,
G "Charge No.1: You while working as Regional Director,
Animal Husbandry, Gaya had made irregular appointments
of 61 persons on 23 Class-3 posts and 61 Class-4 posts.
As such, the State Funds were misused/wasted on salary,
allowances, etc. of the personnel appointed irregularly.
H
STATE OF BIHAR V. 907
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
Charge No.2: You while working as Regional Director, A
Animal Husbandry, Gaya, made appointments on Sate
Level posts (such as Milk Recorder (Dugadh Abhilekhak),
Poultry Attendant (Kukkoot Sahayak), Statistics Teller
(Sankhiyaki Ganak), Progress Assistant (Pragati Sahayak,
etc.) whereas Regional Directors had no power to make B
such appointments. Director, Animal Husbandy is only
competent to make appointments to such posts.
Charge No.3: You adopted the practice of appointment of
four or less than four persons at one go for which it is not
necessary to give advertisement in the n~wspapers, but C
as per Roster, requisition to call for names from
Employment Exchange is mandatory. However, you have
not complied with this rule.
Charge No.4: You also appointed persons in excess of D
.. sanctioned strength.
Charge No.5: The relevant records regarding
appointments are not available in the office. In this
connection, this fact has come to notice that these records ·
have been removed/misplaced at your level." E
The Officer who conducted the enquiry considered the
documents produced by the departmental representative and
the charged officer, arguments advanced by them, analyzed the
entire evidence and concluded that charge No. 1 is partly
proved, charges No. 2 and 3 are fully proved, charge No. 4 is F
not proved and charge No. 5 is partly proved. The analysis of
charges No. 1 to 3 and charge No. 5 made by the Inquiry Officer
is worth noticing. The same reads as under:
"Charges No. 1 to 3:- In the analyses of three charges G
under consideration, firstly it was seen that how much proof
has been made available by the department regarding
appointments made by the charged officer. As has been
shown in detail under heading 'evidence' hereinabove,
number of appointment letters issued by the charged H
908 SUPREME COURT REPORTS [2009] 4 S.C.R.
A officers comes near around 54 and it may vary by two ,...
three less or more. Practical problems were faced in
working out exact number of appointment letters because
many appointment letters were not readable to such extent
that no clear conclusion could be arrived at as to whether
B this is second copy of some other appointment letter or it
contain any other order.
These appointment letters were casually perused. Some
important facts emerged from such perusal. The details of
appointment letters issued with No.M.Camp were found
c as under: -
S.No. Letter No. Date Name of person Category
appointed
1. 14/M. Camp, 9.5.89 Raj Kumar Rajak Class-4
D Nabada
•
2. 12/M. Camp, 9.5.89 Ashok Kumar Class-4
Nabada Rajak
3. 15/M. Camp, 9.5.89 llleg. Class-4
Nabada
E
4. 21/M. Camp, 3.5.90 Sunil Prasad Class-4
Nabada
5. 16/M. Camp, 19.3.90 Kailash Rajak Class-4
Nabada
F
6. 95/Camp, 26.5.90 Onkar Kumar Class-4
Jahanabad Singh
7. 266/Camp, 17.2.90 Arun Kumar Singh Class-4
Aurangabad
G The following appointment letters have been issued with
Issue No."Con.", which is normally used for confidential
correspondence, and use of the same in normal course in the
office is not desired in the interest of work. Using such issue
No. for appointment letter has practically no justification.
H
STATE OF BIHAR V. 909
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
1 2 3 4 5 A
1. 3/Con. 30.4.91 Ra.i Kishore Gupta Class-4
2. 5/Con. 10.6.91 Madhuri Ram Class-4
3. 26/Con. 27.10.91 Shyam Pyare Singh Class-4
B
4. 25/Cori. 27.10.91 Upender Kumar Class-4
Singh
Prasannjeet Kumar
) Singh
5. 22/Con. 27.10.91 Sanjay Kumar Singh Ciass-4
c
6. 16/Con. 25.10.91 Satrughan Sah Class-4
Sahender Prasad
Singh
7. 15/Con.· 24.10.91 , -Ramji Ravi Das Ciass-4
Anil Kumar Singh D
•
8. 6/Con. 2.7.91 Raj Kishore Singh Class-4
9. 8/Con. 19.12.90 Ram Pyare Singh Class-4
10. 7/Con. 10.12.90 Ram Bachan Singh Class-4
Pawan Kumar E
11. 11/Con. 1.2.89 Ganesh Rajak Class-3
12. 13/Con. 2.2.89 Ajay Prakash Diwakar --
Appointment letter not made available but this appointment
has been referred to in a letter No.28/Con. Dated illeg. August, F
89 issued_ by charged officer.
13. 3/Con. 12.2.92 Vinah Sharma Class-3
14. 18/Con. 26.10.91 Virender Kumar Singh
' Pawan Kumar Class-4 G
15. 8/Con. 25.10.91 Bodh Narain Singh Class"4
16. 8/Con. 11.10.88 Narain Tiwari Class-4
17. 14/Con. 7.4.89 Uma Shankar Sharma Class-4
H
910 SUPREME COURT REPORTS [2009] 4 S.C.R.
A 18. 2/Con. 30.4.91 Leela Kumari Class-3
19. 10/Con. 23.10.91 Vijender Mandal Class-3
20. 5/Con. 9.11.90 Ajay Kumar Class-4
21. 11/Con. 23.10.91 Lakhan Lal Manda! Class-3
B
22. 2/Con. 23.01.92 Pawan Kumar Class-3
23. 9/Con. 2.11.88 Brij Kishore Singh Class-3
24. 20/Con. 31.5.89 Ravinder Sharma Class-4
c Following appointment letters were found which have been
issued putting both i.e. "Con." And "Camp":-
1 2 3 4 5
1. 7/Con./Camp- 21.8.90 Raghvendra Narain Class-4
D Sadar, Gaya Vijay Kumar Class-4
2. 3/Con./Camp- 3.1.90 Pandey Class-4
Sadar, Gaya Amar Kumar
3. 6/Con./Camp- 3.8.90 Mithlesh Kumar Class-4
Sadar,Gaya Suman
E
Ashok Kumar Abhay Class-4
4. 8/Con./Camp- 2.9.90 Mahender Kumar Class-4
Sadar, Gaya Yadav
Pankaj Kumar Class-4
F In the following appointment letters, there does not appear
any relation between Issue Nos. and Date, for example, Issue
No. like 1,2,3 have been put in ninth and tenth month of the year:-
1 2 3 4 5
G 1. 1 18.9.91 Anand Mohan Singh Class-4
2. 2 18.9.91 Gaya Prasad Class-4
3. 3 22.10.91 Sudama Singh Class-4
H
STATE OF BIHAR V. 911
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
The specific feature of all the above seven appointment A
letters is that in all these the charged officer has this or that way
ordered to one Clerk of Sadar, Gaya named Shri Avadesh
Prasad that issue these from the Confidential Issue Register of
Sub Divisional Animal Husbandry Officer, Sadar, Gaya. There
is strong possibility arises from this that naturally no one was B
interested to issue such letters otherwise such a senior officer
would have not faced such a situation of giving such written order
to a clerk only for issue of letters. ·
;
The importance of above letters is more clear on perusal
of some of the remaining letters because as an exception, some C
letters have also been issued with Nos. as given below:-
1 2 3 4 5
1. 423 llleg. 1. llleg. Class-3
2. llleg. Class-3 D
2. 978 4.7.91 Girija Yadav Class-3
3. 913 llleg. Jan Vikas Kumar Class-3
Chaudhary
E
4. 1616 15.11.91 Mahender Prasad Cfass-4
Singh
5. 1467 9.10.91 Upender Narain Class-4
Singh
6. 1432 1.10.91 Sunil Kumar Class-4 F
Bharat Kumar Singh Class-4
7. 221 28.6.89 Munender Kumar Class-4
Bharti
8. 1365 11.9.91 Megh Nath Sah Class-4 G
It remains a matter of surprise that when some letters could
be shown to have been issued from office in a normal routine
manner, then what is the need of issuing other appointment
letters in huge numbers by sometime putting "Confidential", H
912 SUPREME COURT REPORTS [2009] 4 S.C.R.
A sometime putting "Mukhya (Hq.)" and sometime putting "Camp"
and sometime by both "Camp" and "Confidential" contradictory
and un-matched Nos. No satisfactory reply to this is found
anywhere during the course of hearing.
In some cases, it also appears to be very unnatural that
B charged officer was Regional Director and his headquarter
was also Gaya but showing office of Animal Husbandry
Officer of Sadar Sub. Division, Gaya as "Camp", letters
were got issued from there. Any need of getting issued
letters using "Camp" is not understandable. When the
c office of charged officer was itself in Gaya, and when any
letter whatsoever was to be got issued, there would have
been no difficulty for him to get it issued from his own
office itself Merely for the reason that he is not sitting in
Officer chamber and in fact is present in the officer of
D Sub Divisional Animal Husbandry Officer, justification of
issue of letter from camp is difficult to understand.
Regarding letters issued from "Camp", this is also another
issue for consideration that such letters are normally issued
under such circumstances wherein it is necessary to issue
E the letter immediately. Any such emergent situation could
not have been in appointment like matters. There is no
reason to think that if charged officer had got the
appointment letter issued even after returning to his office,
the work would have suffered immensely. Nature of letters
F is not such that the subject matter could be considered to
be fit for issue from "camp".
It can also be easily understood with regard to letters
issued by putting different Issue Nos. that for some reasons
the charged officer had considered it not proper to allow
G
those letters pass through many hands in the office, hence
separate Serial No. used for getting those issued. Even
on seeing the available Nos. it is clear that no other
particular correspondence used to be done by using this
"Con." Issue Register from which only these appointment
H
STATE OF BIHAR V. 913
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
letters have been issued, because Issue Nos. are of very A
less units/digits. In very few instances/examples, the No.
has come in double digit. A question mark arises on Year-
wise maintenance of ~uch Register - which is natural.
Now this question also arises that had charged officer
had taken all the actions as per rules, then why such 8
situation cropped up that unnatural Issue Nos. had to be
put on the appointment letters which are generally used
for keeping those letters out of the sight of office. Charged
Officer even otherwise has been merely giving his
statement regarding following procedure of appointment C
that he had done such and such. During the course of
following procedure, many records and correspondence/
files are created/originated such as calling for information
of vacancies, taking decision on the requirement for
appointments, preparing reservation roster and D
maintenance of the same in the Roster Register,
classification of available appointments as per Roster,
notifying the vacancies to the employment exchange or
newspapers, inviting applications, following procedure for
registration of applications, thereafter examination of E
applications as per qualifications, holding meetings of
Selection Committee, issue of minutes and issue of
appointment letters after completion of work. All these
documents going missing appear to be impossible. By
merely saying that he followed procedure does not F
become clear proof that he had done so. In fact, contrary
position appears to be more reliable from the statements
given by his successors and officials of his office. There
are sufficient grounds to hold that the charged officer
has not followed the procedure in appointment.
G
Charge No. (5): -Here position is not such in which any
file related to appointment was ever seen by anyone. No
one has made such admission in his statement. The
appointment letters issued by the charged officer himself
do not bear any File No. It is correct for the charged H
914 SUPREME COURT REPORTS [2009) 4 S.C.R.
A officer to state that it is the duty of the office and concerned
clerk to maintain File Record Register etc. If charged
officer take shelter of this technical argument, then he
shall also be bound to take this responsibility that he
should have seen that other files submitted to him with
B other documents related to appointment bear file No.
and that at the time of issuing fair copy of letters, File
Nos. are mentioned on the letters issued from that file.
Normally, an officer who depends and rely on such defence
is also supposed to take much more care and vigil.
C During the course of analyses under charge No.1 to 3,
many such letters have been referred in which some
unnatural type of Issue Nos. have been given. There are
number of such letters on which Issue No. "Con." has been
given. The charged officer cannot naturally put liability on
D his office for whatever file maintained for issue of such
letters. This question is altogether different that why letters •
were got issued by putting Issue No. "Con." treating the
subject like appointment as confidential.
The argument of charged officer in defence also does not
E clear this fact that why many appointment letters had been
issued with Issue Nos."Camp". As charged officer states
- Files were maintained and office is responsible for safe
"custody" of the same, then it is difficult to understand this . ,
fact that how the letters issued with No."Camp" had come
F in the files maintained by the office. If came, then how
office can be responsible for this. "Camp'' are also of
different types. "Camp" order has been got issued from
Gaya itself by sitting from Sadar Sub Divisional Office
and for this purpose some clerk has also been given written
G order. Such papers do not have any concern with
maintenance of file. Some "Camp" orders have also-been
issued from Nabada-Aurangabad and other places also.
Which file could be submitted before him at those places
on which letter had been issued from Nabada or
H Aurangabad itself and responsibility of the same was of
STATE OF BIHAR V. 915
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
the office of Regional Director, Gaya - it is also difficult to A
understand.
As such, the explanation of charged officer is totally one
sided. The matter is not confined to Issue No. only. When
the charged officer in his defence claim of completing all
the formalities, then all such actions such as assessing B
the vacancies, calling names from employment
exchange or giving advertisement, making list of
candidates, following selection process for the same,
holding meeting of committee and preparing minutes
and getting it approved are required to be taken. It is c
a/so difficult to accept that all such documents had gone
missing at the same time. Merely by saying that safe
custody of records was the responsibility of the office is
neither complete in itself but credibility of this statement
also suffers in view of nature of letters issued. D
Now question arises is that whether charged officer had
removed the files/records of appointments made during
his tenure or had taken away by him or somehow destroyed
these records. All these three possibilities arise only when
such records had been maintained. The type of E
appointment letters shown from which the fourth possibility
also arises that no record has at all been maintained
anywhere. As such, there is also no need to remove or
take away any document. It is merely a possibility for which
charged officer would have needed cooperation and F
participation of other persons to whom employees were
being sent after appointment.
It is not possible to finally decide from the evidences
produced in this departmental inquiry that out of above
G
• three or fourth possibilities, which one is correct. One
thing is though clear that charged officer had not left any
of the papers related to appointment in his office and the
manner in which he adopted the working system of
appointments, this strong possibility arises that even if
H
916 SUPREME COURT REPORTS [2009] 4 S.C.R.
A documents were maintained, these were not maintained
at office level. In such a case, the charged officer shall
himself be responsible for non-availability of documents,
irrespective of following the method of removing those
documents or not maintaining any documents. As such,
s this charge is held to be proved to this extent."
[emphasis added]
32. The so-called regularization of the services of the
respondents on which heavy reliance was placed by the learned
c senior counsel appearing on their behalf in the context of
averments contained in paragraph 4 of the counter affidavit filed
before this Court by Shri Prasannjeet Kumar Singh (respondent
no.3 herein) is a proof of nepotism practiced by the officer and
deserves to be ignored. For the reasons best known to them,
D the respondents have not produced copy of the order by which
their services were regularised. Perhaps none exists. The •
statement furnished by counsel for the appellant, which is
accompanied by documents marked'/:\ and '8', shows that in
less than 7 months of the respondents appointment (except
respondent no.1 who is said to have been appointed with effect
E from 9.10.1991 ), Dr. Darogi Razak is said to have written
confidential memorandum bearing no.20 dated 11.5.1992
(Annexure '/:\)to District Animal Husbandry Officer, Aurongabad,
Gaya that ad hoc appointments made vide Memorandum
No.1467 dated 9.10.1991 are being regularized temporarily by
F the local appointments committee constituted on 11.5.1992.
What is most amazing to notice is that the local appointments
committee was constituted on 11.5.1992, the committee met
on the same day and regularised the ad hoc appointments and
on that very day the Regional Director sent confidential letter to
G his subordinate, i.e., the District Animal Husbandry Officer
informing him about the regularization of ad hoc appointments.
No rule or policy has been brought to our notice which empowers
the appointing authority to regularize ad hoc appointments within
a period of less than 7 months. Therefore, we have no hesitation
H to hold that the exercise undertaken by Dr. Darogi Razak for
STATE OF BIHAR V. 917
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
showing that appointments of the respondents were regularized A
by the local appointments committee on 11.5.1992 was a farce.
33. In view of the above discussion, we hold that the initial
appointments of the respondents were made in gross violation
of the doctrine of equality enshrined in Articles 14 and 16 and the
provisions of the 1959 Act and the learned Single Judge gravely B
erred by directing their reinstatement with consequential benefits.
34. The issue which remains to be considered is whether
the Division Bench of the High Court was justified in refusing to
examine legality and legitimacy of the initial appointments of c
the respondents only on the ground that the State had not
chal!enge9 the dismissal of Letters Patent Appeals filed in other
cases. In our view, the approach adopted by the Division Bench
was clearly erroneous. By now it is settled that the guarantee of
equality before law enshrined in Article 14 is a positive concept D
and it cannot be enforced by a citizen or court in a negative
manner. If an illegality or irregularity has been committed in
favour of any indiy!9ual or ~.group of individuals or a wrong order
has been passed by a judicial forum, others cannot invoke the
jurisdiction of the higher or superior Court for repeating or
multiplying the same irregularity or illegality or for passing wrong E
order - Chandigarh Administration and another v. Jagjit Singh
and another [(1995) 1 SCC 745]. Secretary, Jaipur
Development Authority, Jaipur v. Dau/at Mal Jain and others
[(1997) 1 SCC 35], Union of India [Railway Board] and others
v. J. V Subhaiah and others [(1996) 2 ·SCC 258], Gursharan F
Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459],
State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35],
Faridabad CT Scan Centre v. D. G. Health Services and others
[(1997) 7 SCC 752], Style (Dress Land) v. Union Territory,
Chandigarh and another [(1999) 7 sec 89] and State of Bihar G
and others v. Kameshwar Prasad Singh and another [(2000)
9 SCC 94], Union of India and another v. International Trading
Co. and another [(2003) 5 sec 437] and Directorate of Film
Festivals and others v. Gaurav Ashwin Jain and others [(2007)
4 sec 737]. H
918 SUPREME COURT REPORTS [2009] 4 S.C.R.
~
A 35. The facts of Jagjit Singh's case were that the ...
respondents who had given the highest bid for 338 square yards
plot in Sector 31A, Chandigarh defaulted in paying the price in
accordance with the terms and conditions of allotment. After
giving him opportunity of showing cause, the Estate Officer
8 cancelled the lease of the plot. The appeal and the revision filed
by him were dismissed by the Chief Administrator and Chief
Commissioner, Chandigarh respectively. Thereafter, the
respondent applied for refund of the amount deposited by him.
His request was accepted and the entire amount paid by him
was refunded. He then filed a petition for review of the order
c passed by the Chief Commissioner, which was dismissed.
However, the officer concerned entertained the second review
and directed that the plot be restored to the respondent. The
latter did not avail benefit of this unusual order and started
litigation by filing writ petition in the High Court, which was
D •
dismissed on March 18, 1991. Thereafter, the respondent again
approached the Estate Officer with the request to settle his case
in accordance with the policy of the Government to restore the
plots to the defaulters by charging forfeiture amount of 5%. His
request was rejected by the Estate Officer. He then filed another
E writ petition before the High Court which was allowed only on
the ground that in another case pertaining to Smt. Prakash Rani,
Administrator had restored the plot even after her writ petition
was dismissed by the High Court. While reversing the order of
the High Court, this Court observed:
F
"Generally speaking, the mere fact that the respondent
Authority has passed a particular order in the case of
another person similarly situated can never be the ground
for issuing a writ in favour of the petitioner on the plea of
discrimination. The order in favour of the other person _,
G
might be legal and valid or it might not be. That has to be
investigated first before it can be directed to be followed
in the case of the petitioner. If the order in favour of the
other person is found to be contrary to law or not warranted
in the facts and circumstances of his case, it is obvious
H
STATE OF BIHAR V 919
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
that such illegal or unwarranted order cannot be made the A
basis of issuing a writ compelling the respondent Authority
to repeat the illegality or to pass another unwarranted order.
The extraordinary and discretionary power of the High
Court cannot be exercised for such a purpose. Merely
because the respondent Authority has passed one illegal/ B
unwarranted order, it does not entitle the High Court to
compel the authority to repeat that illegality over again
and again. The. illegal/unwarranted action must be
corrected, if it can be done according to law-indeed,
wherever it is possible, the court should direct the c
appropriate authority to correct such wrong orders in
accordance with law-but even if it cannot be corrected,
it is difficult to see how it can be made a basis for its
repetition. By refusing to direct the respondent Authority
to repeat the illegality, the court is not condoning the earlier
0
illegal act/order nor can such illegal order constitute the
basis for a legitimate complaint of discrimination. Giving
effect to such pleas would be prejudicial to the interests of
law and will do incalculable mischief to public interest. It
will be a negation of law and the rule of law. Of course, if
in case the order in favour of the other person is found to E
be a lawful and justified one it can be followed and a
similar relief can be given to the petitioner if it is found that
the petitioners' case is similar to the other persons' case.
But then why examine another person's case in his
absence rather than exainihing the case of the petitioner F
who is present before the court and seeking the relief. Is
it not more appropriate and convenient to examine the
entitlement of the petitioner before the court to the relief
.....~ asked for in the facts and circumstances of his case than
to enquire into the correctness of the order made or action G
taken in another person's case, which other person is not
before the case nor is his case. In our considered opinion,
such a course-barring exceptional situations-would
neither be advisable nor desirable. In other words, the
High Court cannot ignore the law and the well-accepted H
920 SUPREME COURT REPORTS [2009] 4 S.C.R.
,..
A norms governing the writ jurisdiction and say that because
in one case a particular order has been passed or a
particular action has been taken, the same must be
repeated irrespective of the fact whether such an order or
action is contrary to law or otherwise. Each case must be
8 decided on its own merits, factual and legal, in accordance
with relevant legal principles."
In Secretary, Jaipur Development Authority, Jaipur v.
Dau/at Mal Jain (supra) this Court held:
c "The illegal allotment founded upon ultra vires and illegal
policy of allotment made to some other persons wrongly,
would not form a legal premise to ensure it to the
respondent or to repeat or perpetuate such illegal order,
nor could it be legalized. In other words, judicial process
cannot be abused to perpetuate the illegalities. Article 14
D
proceeds on the premise that a citizen has legal and valid
right enforceable at law and persons having similar right
and persons similarly circumstanced, cannot be denied
of the benefit thereof. Such person cannot be discriminated
to deny the same benefit. The rational relationship and
E legal back-up are the foundations to invoke the doctrine of
equality in case of persons similarly situated. If some
persons derived benefit by illegality and had escaped from
the clutches of law, similar persons cannot plead, nor the
Court can countenance that benefit had from infraction of
F law and must be allowed to be retained. One illegality
cannot be compounded by permitting similar illegal or
illegitimate or ultra vires acts."
In Union of India {Railway Board] and others v. J. V.
G Subhaiah and others (supra), a three-Judge Bench held as ...
under:
"The principle of equality enshrined under Article 14 of the
Constitution, as contended for the respondents, does not
apply since we have already held that the order of the
H CAT, Madras Bench is clearly unsustainable in law and
STATE OF BIHAR VM:.',, 921
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
illegal which can never form basis to hold that the other A
employees are invidiously discriminated offending Article
14. The employees covered by the order of the Madras
Bench may be dealt with by the Railway Administration
appropriately but that could not form foundation to plead
discrimination violating Article 14 of the Constitution." B
·'
In Gurs~aran Singh v. New Delhi Municipal Committee
(supra), this Court declined to invoke Article 14 of the Constitution
for giving relief to the appellant and observed:
"There appears to be some confusion in respect of the
scope of Article 14 of the Constitution which guarantees c
equality before law to all citizens. This guarantee of equality
before law is a positive concept and it cannot be enforced
by a citizen or court in a negative manner. To put it in other
words, if an illegality or irregularity has been committed in
favour of any individual or a group of individuals, others D
;; cannot invoke the jurisdiction of the High Court-or of this
Court, that the same irregularity or illegality be committed
by the State ... so far such petitioners are concerned, on
the reasoning that they have been denied the benefits
which have been extended to others although in an irregular
or illegal manner. Such petitioners can question the validity E
of orders which are said to have been passed in favour of
persons who were not entitled to the same, but they cannot
claim orders which are not sanctioned by law in their favour
on principle of equality before law. Neither Article 14 of the
Constitution conceives within the equality clause this F
concept nor Article 226 empowers the High Court to
enforce such claim of equality before law. If such claims
are enforced, it shall amount to directing to continue and
perpetuate an illegal procedure or an illegal order for
extending similar benefits to others. Before a claim based G
... on equality clause is upheld, it must be established by the
petitioner that his claim being just and legal, has been
denied to him, while it has been extended to others and
in this process there has been a discrimination."
In Faridabad CT Scan Centre v. D. G. Health Services H
922 SUPREME COURT REPORTS [2009] 4 S.C.R.
A (supra), a three-Judge Bench overruled the earlier decision of ...
a two Judge Bench in Mediwell Hospital & Health Care (P)
Ltd. v. Union of India and others [(1997) 1 SCC 759] and held:
"Article 14 cannot be invoked in cases where wrong orders
are issued in favour of others. Wrong orders cannot be
B perpetuated with the help of Article 14 on the basis that
such wrong orders were earlier passed in favour of some
other persons and that, therefore, there will be
discrimination against others if correct orders are passed
against them. The benefit of the exemption notification, in
~
c the present case, cannot, therefore, be extended to the
petitioner on the ground that such benefit has been wrongly
extended to others."
The above principles were extended to the judgment of
the Court in State of Bihar v. Kameshwar Prasad Singh (supra)
D wherein this Court held as under: ~
"The concept of equality as envisaged under Article 14 of
the Constitution is a positive concept which cannot be
enforced in a negative manner. When any authority is
shown to have committed any illegality or irregularity in
E favour of any individual or group of individuals, others
cannot claim the same illegality or irregularity on the ground
of denial thereof to them. Similarly wrong judgment
passed in favour of one individual does not entitle others
to claim similar benefits."
F
[emphasis added]
In State of Haryana v. Ram Kumar Mann (supra), this Court
ruled that the High Court was not right in issuing a mandamus
to the State to allow the petitioner to withdraw his resignation
G merely because in another case such a course as adopted.
Some of the observations made in that case, which are quite •
instructive, are extracted below:
'The doctrine of discrimination is founded upon existence
of an enforceable right. He was discriminated and denied
H equality as some similarly situated persons had been given
STATE OF BIHAR V. 923
UPENDRA NARAYAN SINGH & OTHERS [G.S. SINGHVI, J.]
the same relief. Article 14 would apply only when invidious A
discrimination is· meted out to equals and similarly
circumstanced without any rational basis or relationship
in that behalf. The respondent has no right, whatsoever
and cannot be given the relief wrongly given to them, i.e.,
benefit of withdrawal of resignation. The High Court was 8
wholly wrong in reaching the conclusion that there was
invidious discrimination. If we cannot allow a wrong to
perpetrate, an employee, after committing misappropria-
tion of money, is dismissed from service and subsequently
that order is withdrawn and he is reinstated into the service.
Can a similarly circumstanced person claim equality under C
Section 14 for reinstatement? The answer is obviously
'No'. In a converse case, in the first instance, one may be
wrong but the wrong order cannot be the foundation for
claiming equality for enforcement of the same order. As
stated earlier, his right must be founded upon enforceable D
right to entitle him to the equality treatment for enforcement
thereof. A wrong decision by the Government does not
give a right to enforce the wrong order and claim parity or
equality. Two wrongs can never make a right."
In Union of India v International Trading Co. (supra), the E
Court reiterated that Article 14 does not comprehend negative
equality and observed:
"What remains now to be considered, is the effect of
permission granted to the thirty two vessels. As highlighted by F
learned counsel for the appellants, even if it is accepted that
there was any improper permission, that may render such
permissions vulnerable so far as the thirty two vessels are
concerned, but it cannot come to the aid of the respondents. It
is not necessary to deal with that aspect because two wrongs
'4 do not make one right. A party cannot claim that since something G
wrong has been done in another case direction should be given
for doing another wrong. It would not be setting a wrong right,
but would be perpetuating another wrong. In such matters there
is no discrimination involved. The concept of equal treatment
on the logic of Article 14 of the Constitution of India (in short "the H
924 SUPREME COURT REPORTS [2009) 4 S.C.R.
A Constitution") cannot be pressed into service in such cases.
What the concept of equal treatment presupposes is existence
of similar legal foothold. It does not countenance repetition of a
wrong action to bring both wrongs on a par. Even if hypothetically
it is accepted that a wrong has been committed in some other
8 cases by introducing a concept of negative equality the
respondents cannot strengthen their case. They have to establish
strength of their case on some other basis and not by claiming
negative equality."
In Directorate of Film Festivals and others v. Gaurav
c Ashwin Jain and others (supra), a two-Judge Bench, after
making a reference to the judgments in Jagjit Singh's case and
Gursharan Singh's case, observed:
"When a grievance of discrimination is made, the High
Court cannot just examine whether someone similarly
D situated has been granted a relief or benefit and then
automatically direct grant of such relief or benefit to the
person aggrieved. The High Court has to first examine
whether the petitioner who has approached the court has
established a right, entitling him to the relief sought on the
facts and circumstances of the case. In the context of such
E examination, the fact that some others, who are similarly
situated, have been granted relief which the petitioner is
seeking, may be of some relevance. But where in law, a
writ petitioner has not established a right or is not entitled
to relief, the fact that a similarly situated person has been
F illegally granted relief, is not a ground to direct similar
relief to him. That would be enforcing a negative equality by
perpetuation of an illegality which is impermissible in law."
36. In view of the above stated legal position, the order
passed by the Division Bench dismissing the Letters Patent
G Appeal cannot be sustained.
37. In the result, the appeal is allowed, the orders of the
learned Single Judge and Division Bench are set aside and
the writ petition filed by the respondents is dismissed.
G.N. Appeal allowed. ·
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