Sunder Das v. State of Bihar — 1994 DIGILAW 89 (PAT)

JUDGMENT S.B. Sinha and Shashank Kumar Singh, JJ. All these three writ applications involving common questions of fact and law were taken for hearing together and are being disposed of by this common judgment. 2. The petitioners in these applications have prayed for issuance of a writ of mandamus directing the respondents to regularise their services. 3. The petitioners were appointed as daily wage casual labourers. According to them, they have been working for a period of five years but despite the same their services have not been regularised. 4. The petitioners have contended that the State of Bihar has adopted a policy decision as would be evident from the Memo No. 3955 dated 10.4.1993 in terms whereof preferences are required to be given to the employees who have worked for a period of more than 240 days. 5. Dr. Sadanand Jha, learned senior counsel appearing on behalf of the petitioners inter-alia submitted that for the purpose of regularisation of the employees, no provision in the statute needs to exist inasmuch as the scheme of regularisation has to be framed keeping in view Articles 14 and 16 of the Constitution of India as also decisions of the Supreme Court of India which have the force of law. 6. The learned counsel in this connection has relied upon a decision in All India Imam Organisation and others versus Union of India and others reported in 1993 (3) S.C.C., 584 and in State of Haryana and others versus Piara Singh and others reported in AIR 1992 S.C., 2130. The learned counsel further drew our attention to the statement made in Paragraph-13 of the counter-affidavit as also Annexures-5 and 6 to the writ application for the purpose of showing that about 300 sanctioned posts are lying vacant. It was further submitted that even bonus and other benefits have been directed to be paid to the petitioners and, thus, they have been treated as regular employees. 7. Mr. Jyoti Saran, learned counsel appearing on behalf of the University submitted that in terms of the provisions of the Rajendra Agricultural University Act (hereinafter to be referred to as the said Act) as also statutes framed thereunder, the appointments have to be made in terms of the provisions laid down therein. It was submitted that the University can neither create any post nor has any fund to pay the salary of the regular staff. It was submitted that the University can neither create any post nor has any fund to pay the salary of the regular staff. It was pointed our that it is the job of the State Government to provide fund to the Respondent-University as also to sanction the posts. 8. From a perusal of the latter dated 10.1.1993 as contained in Annexure-5 to the writ application, it appears that the Principal of the College has stated therein that there exists vacancies in the sanctioned posts. 9. On the other hand, the Respondent-University in its counter-affidavit specifically asserted that none of the petitioners had been engaged or appointed against any sanctioned posts. It was further stated that only on non-availability of the vacancy or sanctioned posts, labourers are engaged on daily wage in the exigencies of works. It has been submitted that the Board of Management of the University has not adopted any policy decision on the pattern of the circular of the University as contained in Annexure-3 to the writ application. 10. It is now well settled by reason of various decisions of this Court that regularisation cannot be a mode of appointment. It is also well known that any appointment made in violation of the mandatory provisions of statute governing the term of appointment as also Article 16 of the Constitution of India is a nullity. This aspect of the matter has been considered in great details by several Division Benches of this Court as also by the Supreme Court of India. Reference in this connection may be made to Vijay Kumar vs. The State of Bihar and others reported in 1993 (1) P.L.J.R., 99 and Sitaram Thakur vs. The State of Bihar and others reported in 1994 (1) P.L.J.R. 68 . 11. In Sitaram Thakur's case (supra) this Court while distinguishing the decision of the Supreme Court in State of Haryana and others versus Piara Singh and others reported in J.T. 1992 (5) S.C. 179, held as follows : "The Supreme Court was considering the regularisation of ad hoc employees who were continuing for several years only pursuant to the aforementioned policy decision only a number of person who satisfy the conditions prescribed therein, the order issued by the aforementioned judgment were regularised. However, some employees, although, were not regularised they were allowed to continue those employees approached the High Court. However, some employees, although, were not regularised they were allowed to continue those employees approached the High Court. The High Court gave certain directions in the aforementioned writ applications. The Supreme Court in that case however upon consideration of the schemes framed by it in the matter of regularisation of service in its earlier decisions found that if the judgment of the High Court is implemented various problems would arise." The Supreme Court observed : "This is not a case, we must reiterate where the Government have failed to take any steps for regularisation of either ad hoc employees working over the years. Every few years they have been issuing orders providing for regularisation in such a case, there is no occasion for the court to issue any directions for regularising such employees more particularly when none or the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. The court cannot obviously help those who cannot get regularised under these orders for their failure to satisfy the condition prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction. In case of such persons we can only observe that it is for the respective Governments to consider the feasibility of giving them appropriate relief particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their ad hoc appointment and further whose records of service were satisfactory." 12. In Sitaram Thakur's case (supra) this Court observed as follows : "In my opinion, therefore, there cannot be any doubt that if the orders of promotion are illegal being violative of Article 16 of the Constitution of India and of the Recruitment Rules framed under a statute of Article 309 of the Constitution of India, the principles of natural justice need not be complied with inasmuch as in such an event the concerned employee had not derived any right to hold or continue in the said post. However, before doing so the foundational facts have to be found by the Competent Authority. However, before doing so the foundational facts have to be found by the Competent Authority. Reference in this connection may be made to Satyendra Prasad versus State of Bihar 1991 (2) P.L.J.R., 460; Kamal Kumar Sinha versus Indira Gandhi Institute of Medical Sciences and others 1990 (2) P.L.J.R. 465 ; M.L. Gupta versus Instrumentality, 1992 (1) P.L.J.R., 137 ; Union of India and others versus Tejram Parashramji Bombhate, A.I.R. 1992 S.C., 570." 13. This Court in that case considered the decision of the Supreme Court of India in State of Punjab and others versus Surinder Kumar and others reported in 1992 (1) S.C.C., 489 ; B.N. Nagrajan and others versus State of Karnataka reported in A.I.R., 1979, S.C. 1676 as also the decision of one of us (S.B. Sinha, J) in M.L. Gupta versus Instrumentation Limited and others reported in 1992 (1) P.L.J.R., 137. It was observed as follows : "Unfortunately, however, in none of the aforementioned cases, the Supreme Court considered its earlier binding precedents on the question of manner of regularisation, that is State of Mysore vs. S.V. Narayanappa, (1976) 1 SCR 128 and R.N. Nanjudappa vs. T. Thimmiah reported in (1972) 2 SCR, 799. The aforementioned judgments of the Supreme Court were followed by a three judge bench of the Supreme Court in B.N. Nagrajan and others vs. State of Karnataka reported in AIR, 1979 S.C. 1676. In R.N. Nanjudappa (Supra), the Supreme Court held that if an appointment is made in infraction of the rules or it is in violation of the provisions of the Constitution, such appointments being illegal, the same cannot be regularised. It was further held that ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root bf the appointment. It held : Regularisation cannot said to be a mode of recruitment. It was further held that ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root bf the appointment. It held : Regularisation cannot said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." The Supreme Court in that case negatived the contention that regularisation in employment is possible by taking recourse to Article 162 of the Constitution of India in the following words : "In the present case, the contention on behalf of the respondents that the regularisation was itself a mode of appointment under Article 162 of the Constitution is unsound, The rules came into existence in the present case in 1964. The regularisation in the present case was also bad because even without specific methods of recruitment appointments could be made only by selection or promotion or transfer from equivalent grade. The method of recruitment and qualification for each State Civil Service was to be set forth in the rules of recruitment of such service specially made in that behalf." The Supreme Court held that Article 162 does not confer power to regularise nor does it confer power on the Government to make rules for recruitment or conditions of service. It was further held : "All that the public service commission did was to regularise the appointment to the post of the principle. The regularisation by tile State of the appointment is with effect from 1958. This regularisation is bad for following reasons. First, regularisation is not itself a mode of appointment. Secondly, the modes of appointment are direct recruitment or selection or promotion or appointment for reasons to be recorded in writing by an officer holding a post of an equivalent grade by transfer from any other service of the State. In B.N. Nagrajan and others vs. State of Karnataka reported in AIR, 1979 S.C., 1676 it was held : It was argued that the regularisation of promotions gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st November, 1956. In B.N. Nagrajan and others vs. State of Karnataka reported in AIR, 1979 S.C., 1676 it was held : It was argued that the regularisation of promotions gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from the 1st November, 1956. The argument, however, is unacceptable to us for two reasons. Firstly, the words 'regular' or 'regularisation' do not connote permanence, They are terms calculationed to condone any procedural irregularaties and are meant to cure only such defects as are attributable to the methodology followed in making the appointment. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. In none of the cases referred to by the learned counsel for the petitioner, the aforementioned authoritative pronouncements of the Supreme Court which have defined the term 'regular' and 'regularisation' were taken into consideration. The decisions of the Supreme Court, referred to on behalf of the petitioners, therefore, will have to be considered from that angle. Thus, regularisation of casual labourers do not mean that they can be permanently absorbed in the state service irrespective of the fact that there exists any vacancy or not. It has been held that respondent No. 1 is a State. It, therefore, is bound to give equal opportunity of employment to all the candidates eligible therefor in terms of Articles 14 and 16 of the Constitution of India. Permanent absorption of casual employees in the State service, in absence of any statutory provision or a policy decision is, thus impermissible. In a given situation, it may be permissible for the Supreme Court to lay down a scheme or direct a scheme for permanent absorption of its employees be made by the State. Such a power exists in the Supreme Court by reason of Article 142 of the Constitution of India as it may pass a decree or order for giving complete justice to the parties and such decree or orders would be binding upon the State." In M.L. Gupta's case this court also took into consideration the decision of this court in Mahendra Ram vs. Dy. Commissioner, Palamau reported in 1989 BLT 27 ; Satish Kumar vs. The State of Bihar reported in 1990 (1) PLJR, 219 ; Udai Kumar Sharma vs. Registrar, Co-operative Societies reported in 1989 PLJR 952 ; Dijenejra Singh vs. State of Sikkim, reported in 1990 Labour and Industrial Cases, 43 ; Rakesh Ranjan Verma vs. State of Bihar and others reported in 1991 (1) PLJR, 398 ; Jain Jaiyendra Kumar Singh and others vs. The Bihar State Electricity Board and others reported in 1991 (1) PLJR, 406 ; Lalan Prasad Singh v. State of Bihar (L.P.A. 66/90 (R) disposed of on 18th September, 1990, Kamal Kumar Sinha v. Indira Gandhi Institute of Medical Sciences, Sheikhpura, Patna, reported in 1991 (1) Bihar Law Judgment's 129 : 1990 (2) PLJR, 465, Satyanarayan Sharma and others v. National Mineral Development Corporation Ltd. and others reported in 1990 (4) SCC, 163 : AIR 1990 SC, 2054, as also a Full Bench decision of this Court in Nand Kishore Raut and ors. v. State of Bihar and others reported in 1991 BBCJ 139 : 1991 (2) PLJR, 2." 14. In All India Imam Organisation and others case (supra) upon which strong reliance has been placed by Dr. Jha that Supreme Court was considering the question of activities of Imams of. Mosques were although, appointed by Mutwalils are under the control of Wakf Board. Before the Supreme Court, a contention was raised that Wakf Board has no control over the said employees which was negatived in the following terms: "To say, therefore, that the Board has no control over the mosque or Imam is not correct. Absence of any provision in the Act or the rules providing for appointment of Imam or laying down conditions of their service is probably because they are not considered as employees. At the same time it cannot be disputed that due to change in social and economy set up they too need sustenance. Nature of their job is such that they may be required to be present in the mosque nearly for the whole day. There may be some who may perform the duty as part of their religious observance. Still others may be ordained by the community to do so. Nature of their job is such that they may be required to be present in the mosque nearly for the whole day. There may be some who may perform the duty as part of their religious observance. Still others may be ordained by the community to do so. But there are large number of such persons who share no other occupation or profession or service for their livelihood except doing duty as Imam." "But assuming that they are appointed by the Mutwallis the Board cannot escape from its responsibility as the Mutwallis too under Section 36 of the Act are under the supervision and control of the Board. In series of decisions rendered by this Court it has been held that right to life enshrined in Article 21 means right to live with human dignity." 15. However, these cases stand absolutely on different footings. 16. Section 25 of the said Act reads as follows : "Subject to the provisions of the Act, the appointment, procedure for selection, pay and allowances and other service conditions of teachers and members of the staff of the University shall be as prescribed." 17. The matter of appointment by the University is governed by a statute and statutory provisions. Appointment have to be made only on a post sanctioned by the State and upon following the procedures laid down therein as also Article 16 of the Constitution of India. Any appointment made as indicated hereinbefore either in violation of the provisions of a statute or the provision of Article 16 of the Constitution of India would be a nullity. 18. The University in its counter-affidavit categorically stated that the posts are not sanctioned. 19. A Division Bench of this Court recently in Manoj Prasad and others vs. Ranchi University and others reported in 1993 (2) B.L.J.R., 893, has held that any appointment made in violation of the provision of Section 35 of the Bihar State University Act, 1976 is nullity. Similar views have been taken by this Court in Gopi Krishna Pathak and others versus Ranchi University and others reported in 1993(2) B.L.J.R., 897. 20. In Promod Kumar and others Vs. Similar views have been taken by this Court in Gopi Krishna Pathak and others versus Ranchi University and others reported in 1993(2) B.L.J.R., 897. 20. In Promod Kumar and others Vs. Bihar University and others reported in 1993 (2) P.L.J.R., 618 at 623, a Division Bench of this Court has held: "On the basis of different materials indicated above, a question arises whether the claim of the petitioners of CWJC No. 4649 of 1991 for their regularisation in the college is justified? According to Dr. Jha, as these petitioners were not appointed in accordance with the statutory provision, they are not entitled for regularisation. There is no dispute that the College in question was made constituent unit of the University in the year 1970. As per Section 10 (6) of the Act as also from different provisions of the service statute of the University, the Vice-chancellor of the University is only competent to appoint a non-teaching staff in any of the constituent college. The engagement of the petitioners was made by the Principal of the College some time between 26.8.1974 to 4.7.1986. Mr. Jha has rightly contended that in view of the specific statutory provision for making appointment of non-teaching staff of the College in a particular manner, the State Government or its authorities through executive actions cannot override the statutory provisions. It is well settled that if a particular legislation provides to do a thing in a particular manner, the same cannot be altered or changed through an executive action. Therefore, since the appointment of non-teaching staff of the college as indicated above was not made by a proper authority, it is not open to the respondents to regularise their services on the basis of notification no. 894 dated 11.7.1989 issued by the Department of Human Resources, Government of Bihar." 21. In Teja Prasad vs. State of Bihar reported in 1992 (2) P.L.J.R., 568, it has been held by this Court that any appointment made in violation of Section 66B of the Bihar Co-operative Societies Act is a nullity. 22. 894 dated 11.7.1989 issued by the Department of Human Resources, Government of Bihar." 21. In Teja Prasad vs. State of Bihar reported in 1992 (2) P.L.J.R., 568, it has been held by this Court that any appointment made in violation of Section 66B of the Bihar Co-operative Societies Act is a nullity. 22. In C.W.J.C. No. 1814 of 1984 Paltu Rai vs. Rajendra Agricultural University and others disposed of on 18.7.1985, the Chief Justice S.S. Sandhawalia and N.P. Singh, J. (as his Lordship then was), while considering a similar question inter alia held as follows: "There is nothing on the record to show that any such decision has been taken by the University or there is any statute or regulation which enjoins the University to absorb its casual workers after any specified period of time." 23. The decision of Paltu Rai (Supra) aforementioned has been followed by this Court in Kuwajee vs. State of Bihar and others in C.W.J.C. No. 7033 of 1992 disposed of on 14.2.1993. Reference in this connection may also be made to 1993 (4) Scale 597 . 24. In view of the aforementioned authoritative pronouncements it is not possible to issue any directions in view of the categorical statement made on behalf of the Respondent-University that the petitioners have been engaged as daily workers and payments are being made on that basis. 25. For the reasons aforementioned, in our opinion, no relief can be granted to the petitioners. These applications are, therefore, dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.