Holding

An appointment made in contravention of the prescribed administrative procedure is illegal and cannot be regularised; consequently, the termination of the respondent’s service stands.

Summary

The State of Jharkhand appointed several Class III and IV employees, including the respondent Manshu Kumbhkar, without complying with the administrative instructions dated 3‑12‑1980, which required advertisement, a selection committee, and recruitment through the district employment exchange. The appointments were later declared illegal and the services of the appointees were terminated. The respondent challenged the termination in a writ petition; the High Court set aside the termination by relying on a previous case (S) where a similar termination was set aside. On appeal, the Supreme Court held that the High Court’s reliance on that case was misplaced, noting that the earlier case was dismissed for delay and that an illegal appointment cannot be regularised or perpetuated. Consequently, the termination of the respondent’s service was upheld and the appeal was allowed.

Issues considered

Whether an appointment made in violation of mandatory administrative instructions is void and cannot be regularised.
Whether a termination of service of an illegally appointed employee can be set aside by relying on a prior case where termination was set aside.
Whether the High Court erred in applying the precedent of another employee’s case to the present facts.

Legislation cited

Constitution of Indias. Article 14, s. Article 16

Subjects

service lawtermination of serviceillegal appointmentadministrative instructionsregularisationArticles 14 and 16appointment procedureSupreme Court

Judgment

STA TE OF JHARKHAND AND ORS. A
v.
MANSHU KUMBHKAR

SEPTEMBER 17, 2007

[DR. ARJJIT PASAYAT AND D.K. JAIN, JJ.) B

Service Law-Termination of Service-On the ground that appointment
was illegal and was made without following the procedure-High Court
setting aside termination on the ground that termination of a similarly C
situated employee set aside in another case-On appeal, held: Order of High
Court is not sustainable-Reliance on the case of another employee was
misconceived as his termination was set aside on the ground of delay-The
appointment having been proved illegal, the mistake committed in another
case, cannot be perpetuated in the present case.
D
Appointments were made to the post of Class HI and IV by the Deputy
Director of Education without following the norms fixed by administrative
instructions. Respondent was one of the appointees. Respondent's case was
that advertisement as well as interview letter was issued. The case of the State
was that same were fabricated as there was no entry in the dispatch register
for these two dates. The illegal appointments were cancelled by the State. E
Respondent filed Writ Petition, wherein High Court directed the respondent
to make fresh representation before the Authority and directed the concerned
authority to make an inquiry into the matter. After inquiry, it was found that
all appointments were illegal. The services of the respondent as well as others
were terminated. Respondent filed Writ Petition challenging the same. Single F
Judge of High Co,urt set aside the termination on the ground that Division
Bench of High Court in an LPA had set aside termination of a similarly
situated employee 'S'. Division Bench of High Court confirmed the order of
Single Judge. Hence the present appeal.

Allowing the appeal, the Court G
HELD: 1. The order of the Single Judge, as maintained by the Division
Bench of High Court cannot be sustained. Reliance by the High Court on the
order passed in case of 'S' was thoroughly misconceived. LPA in his case

1069 H
1070 SUPREME COURT REPORTS [2007] 9 S.C.R.

A was dismissed on the ground of delay. Even otherwise, merely because mistake
had been committed in one case, there is no rational for perpetuating that
mistake, even when the same is illegally impermissible. In terms of the
executive instructions, specified procedure was to be adopted.
[Paras 11 and 8] [1076-E; 1072-F]

B 2. In the instantcase, the norms have been fixed not by any Rule but by
administrative instructions. There was no advertisement and there was not
even any properly constituted committee to make the selection. The stand that
letter of appointment as well as advertisement was issued clearly gets negatived
when the entries from the dispatch register are noted.
C [Para 6] [1072-B, C]

Ashwani Kumar and Ors. v. State of Bihar and Ors., [1997) 2 SCC 1
and Secretaty, State of Karnataka and Ors. v. Umadevi (3) and Ors., (2006] 4
sec 1, relied on.
D CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4310 of2007.

From the Judgment and Order dated I0.01.2005 ofthe High Court of
Jharkhand at Ranchi in LPA No. 861 of2003. ·

B.B. Singh and Kumar Rajesh Singh for the Appellant.
E Ajit Kumar Sinha for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. l. Leave granted.

F 2. Challenge in this appeal is to the order passed by a Division Bench
of the Jharkhand High Court dismissing the Letters Patent Appeal filed by the
appellant-State and its functionaries.

3. Background facts in a nutshell are as follows:

G One Miss Suraj Mani Khalko, a few days before her retirement made
many appointments to the posts of Class III and Class IV employees without
following the procedure of appointment stipulated .by instruction dated
3.12.1980. No records were available in the office for such appointments,
namely, advertisement, requisition to employment exchange, committee for
H preparing panel to be chaired by bistrict Magistrate, with District Welfare
STATE v. MANSHUKUMBHKAR[PASAYAT,J.] 1071

Officer and three officers of different district levels. According to the A
>
respondent advertisement was issued for Class III and Class IV employees
on 4.6.1993 and on 12.7.1993 interview letters were issued. According to the
appellants all these were signed by Miss Suraj Mani Khalko and were fabricated
and forged documents and were never issued by the department which is
manifest from the dispatch register. On 16.9.1993 the appointment letter was
purportedly issued and the respondent claimed to have joined on 21.9.1993,
B
but he was not paid his salary. A few days thereafter i.e. on l ).10.1993 illegal
appointments made by Miss Suraj Mani Khalko were cancelled by the
Government. The respondent filed a writ petition in the year 1995 before the
Jharkhand High Court. The High Court dismissed the writ petition by its order
dated 28.8.1995 with the direction to the respondent to file fresh representation c
with all materials i.e. letter of appointment etc. before the authority. Direction
was also given to make payment of admitted dues since 21.9.1993 till date. The
respondent did not file any representation as was directed by the High Court.
On the basis of the direction given by the High Court in CWJC No.3878/1995,
Deputy Commissioner was appointed to make an inquiry. By report dated
l 0.4.1997, the Deputy Commissioner found all the appointments to be illegal. D
By order dated 22.4.1997 the services of respondent, Sri Sanjay Kumar and
I' three others were terminated by the District Education Officer. Respondent
filed CWJC No.829/1998. Several terminated employees filed writ petitions
which were dismissed by the High Court on the ground that the appointments
were violative of Articles 14 and 16 of the Constitution of India, 1950 (in short E
'the ConstitutiCln') as they had been made without following the requisite
procedure. Learned Single Judge allowed the writ petition filed by the
respondent on the ground that Sanjay Kumar had been appointed pursuant
to the order passed by the High Court. The Letters Patent Appeal filed as
aforesaid was dismissed.
F
4. Learned counsel for the appellants submitted that on the basis of the
norms fixed for appointment, due procedure was not followed. Merely because
somebody else had granted appointment, that cannot be a ground to claim
that wrong should be perpetuated. On the basis of the norms fixed by the
Department of Personnel and Administrative Reforms dated 3.12.1980, specific
modalities· were required to be followed. It is to be noted that in Sanjay
G
Kumar's case LPA was dismissed on the ground of.delay and, therefore, was
not a precedent to be followed. Reference is made to the decision of this
"I
~ Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors.,
(2006] 4 SCC l to contend that the learned Single Judge could not have
passed the order for regularization H
1072 SUPREME COURT REPORTS [2007] 9 S.C.R .

A 5. In response, learned counsel for the respondent stated that it is not
a case of regularisation. There was an advertisement, there was a vacancy,
panel of selection was duly constituted and, therefore, no interference is
called for.

6. In the instant case, the norms have been fixed not by any Rule but
B by administrative instructions. As noted above, stand of the appellant is that
respondent was not sponsored by the employment exchange. There was no
advertisement and there was not even any properly constituted committee to
make the selection. The stand that letter of appointment was issued clearly
gets negatived when the entries from the dispatch register are noted.
C According to the respondent interview letters were issued on 12.7.1993 and
advertisement was issued on 4.6.1993. There is no entry in the dispatch
register for these two dates. The details are annexed to P-9 to the rejoinder
affidavit.

·;.It is to be noted that by ord_er dated 4.9.1996 in CWJC No. 3878/95
D the High Court noted as follows:

"A revealing fact has been disclosed that taking advantage of the
orders passed by this Court, as mentioned in Annexures-5 to 8, this
Respondent No. 4 is squandering the government money and getting
the back dated appointment letter issued from regional Deputy Director
E of Education, North Chotanagpur Division, Ha.U'.ribagh, now retired
without the knowledge of the District Establishment Committee, whose
Chairman is Deputy Commissioner."

8. Reliance by the High Court on the order passed in Sanjay Kumar's
case (supra) was thoroughly misconceived. It is to be noted that LPA was
F dismissed on the ground of delay. Even otherwise, merely because mistake
had been committed in one case, there is no rational for perpetuating that ·
mistake, even when the same is illegally impermissible. It is to be noted that
in terms of the executive instructions, the following procedure' was to be
adopted:
G "6. On other category of class-4 posts the appointments will be made
through District employment exchange as far as practicable from local
areas. Because only one panel for the appointment of class-4 employees
will be prepared for appointment at district level which will be effective
for one year, the district officer will give extensive publicity to the
H advertisement calling for applications and examine the applications.
r -

STATE v.MANSHUKUMBHKAR[PASAYAT,J.] 1073

Every applicant will quote his registration region/the district exchange. A
If due to any reason the District employment officer does not
recommend his name then the Collector will admit his application on
the ground of registration No. and will consider the application and
the District Magistrate will as per necessity, examine the list- as
recommended by the Employment Exchange for appointment.
B
7. For recruitment to such posts a committee will be formed to be.
chaired by the District Magistrates and members of such a committee
will be district welfare officer, district employment officers and three
p.
senior officers of different district levels working department as
nominated by the district magistrates and two officers from the C
department of district level developmental works. For appointment to
the class-4 posts in every district a list of suitable candidates will be
prepared finally by the said committee at the outset of the financial
year by the month of May and appointments through year by the
financial year would be made in all offices from this list. So far as the
current financial year is concerned, if a list of suitable candidate has D
already been prepared in keeping with memo No.10747 dated 20th
June in any district, then the recruitment in the current year should
be made from the list but if there is no such list prepared in any
district according to the above memo then such a list should be got
prepared by aforesaid district levels committee by 31st December,
I 980. District Magistrates are hereby requested that they should sent E
by 15th Feb., 1981 a detailed statement in the enclosed proforma about
appointments made in every district level officers uptill 3 I st January,
1981 keeping in view the above procedure_ The report regarding the
appointment made from the list prepared for next financial year in
accordance with the above procedure should be sent to the department F
of personnel till 15th July, 1981."

9. In Ashwani Kumar and Ors. v. State of Bihar and Ors., [1997] 2 SCC
I, it was noted in paras 13 and 14 as follows:

"13. So far as the question of confirmation of these employees whose G
entry itself was illegal and void, is concerned, it is to be noted that
question of confirmation or regularisation of an irregularly appointed
..J..... candidate would arise if the candidate concerned is appointed in an
irregular manner or on ad hoc basis against an available vacancy
which is already sanctioned. But if the initial entry itself is unauthorised
H
1074 SUPREME COURT REPORTS [2007] 9 S.C.R.

A and is not against any sanctioned vacancy, question of regularising
the incumbent on such a non-existing vacancy would never survive
for consideration and even if such purported regularisation or
confirmation is given it would be an exercise in futility. It would
amount to decorating a still-born baby. Under these circumstances
there was no occasion to regularise them or to give them valid
B confirmation. The so-called exercise of confirming these employees,
therefore, remained a nullity.

X\X xxx xxx

As we have seen earlier when the initial appointments by Dr Mallick
c so far as these daily-wagers were concerned, were illegal there was no
question of regularising such employees and no right accrued to them
as they were not confirmed on available clear vacancies under the
Scheme. It passes one's comprehension as to how against 2500
sanctioned vacancies confirmation could have been given to 6000
employees. The whole exercise remained in the realm of an unauthorised
D
adventure. Nothing could come out of nothing.

X\X xxx xxx

Zero multiplied by zero remains zero. Consequently no sustenance
can be drawn by the appellants from these confirmation orders issued
E to them by Dr Mallick on the basis of the directions issued by the
authorities concerned at the relevant time. It would amount to
regularisation of back-door entries which were vitiated from the very
inception.

xxx. xxx xxx
F
Whether they are posts or vacancies they must be backed up by
budgetary provisions so as to be included within the permissible
infrastructure of the Scheme. Any posting which is dehors the
budgetary grant and on a non-existing vacancy would be outside the
sanctioned scheme and would remain totally unauthorised. No right
G would accrue to the incumbent of such an imaginary or shadow
vacancy.

14. In this connection it is pertinent to note that question of
regularisation in any service including any government service may
arise in two contingencies. Firstly, if on any available dear vacancies
H
STATE v. MANSHUKUMBHKAR[PASAYAT,J.] 1075

which are of a long duration appointments are made on ad hoc basis A
or daily-wage basis by a competent authority and are continued from
time to time and if it is found that the incumbents concerned have
continued to be employed for a long period of time with or without
any artificial breaks, and their services are otherwise required by the
institution which employs them, a time may come in the service career B
of such employees who are continued on ad hoc basis for a given
substantial length of time to regularise them so that the employees
concerned can give their best by being assured security of tenure. But
this would require one precondition that the initial entry of such an
employee must be made against an available sanctioned vacancy by
following the rules and regulations governing such entry. The second C
type of a situation in which the question of regularisation may arise
would be when the initial entry of the employee against an available
vacancy is found to have suffered from some flaw in the procedural
exercise though the person appointing is competent to effect such
initial recruitment and has otherwise followed due procedure for such
recruitment. A need may then arise in the light of the exigency of D
administrative requirement for waiving such irregularity in the initial
/I
appointment by a competent authority and the irregular initial
appointment may be regularised and security of tenure may be made
available to the incumbent concerned. But even in such a case the
initial entry must not be found to be totally illegal or in blatant E
disregard of all the established rules and regulations governing such
recruitment. In any case back-door entries for filling up such vacancies
have got to be strictly avoided. However, there would never arise any
occasion for regularising the appointment of an employee whose
initial entry itself is tainted and is in total breach of the requisite
procedure of recruitment and especially when there is no vacancy on F
which such an initial entry of the candidate could ever be effected.
Such an entry of an employee would remain tainted from the very
beginning and no question of regularising such an illegal entrant
would ever survive for consideration, however competent the recruiting
agency may be. The appellants fall in this latter class of cases. They G
had no case for regularisation and whatever purported regularisation
was effected in their favour remained an exercise in futility. The learned
counsel for the appellants, therefore, could not justifiably fall back
upon the orders of regularisation passed in their favour by Dr Mallick.
Even otherwise for a regularising such employees well-established
procedure had to be followed. H
1076 SUPREME COURT REPORTS [2007] 9 S.C.R.

A xxx xxx xxx

Even this letter clearly indicates that the posts had to be filled up by
following the prescribed procedure. Despite all these communications neither
the initial appointments nor the confirmations were done by following the
prescribed procedure. On the contrary all efforts were made to bypass the
B recruitment procedure known to iaw which resulted in clear violation of
Articles 14 and 16( I) of the Constitution of India both at the initial stage as
well as at the stag·e of confirmation of these illegal entrants. The so-called
regularisations and confirmations could not be relied on as shields to cover
up initial illegal and void actions or to perpetuate the corrupt methods by
C which these 6000 initial entrants were drafted in the Scheme by Dr Mallick.
For all these reasons, therefore, it is not possible to agree with the contention
of the learned counsel for the appellants that in any case the confirmations
given to these employees gave them sufficient cloak of protection against
future termination from services. On the contrary all the cobwebs create~ by
Dr Mallick by bringing in this army of 6000 employees under the Scheme had
D got to be cleared lock, stock and barrel so that public confidence in
Government administration would not get shattered and arbitrary actions
would not get sanctified."

I 0. This decision was noted in para 31 of Uma Devi's case (supra).

E 11. Above being the position, the order of the learned Single Judge, as
maintained by the Division Bench cannot be sustained.

12. The appeal is allowed without any order as to costs.

K.K.T. Appeal allowed.