Jagarnath Prasad v. State of Bihar — 1999 DIGILAW 454 (PAT)

JUDGMENT A.K. Ganguly, J. This writ petition has been heard at length at the admission stage on various points relating to legality of appointment and procedure of its termination. This Court has considered all these points and delivers the following judgment. 2. The petitioner no.1 was appointed to the post of Clerk-cum-Amin and petitioner no.2 was appointed to the post of Tax Collector in Raxaul Municipality on daily wages for period of three months and little more. Such appointment was made by the Executive Officer of the said Municipality. It is not in dispute that prior to such appointment there has been no advertisement or any selection procedure. 3. There is no specific order extending such appointment beyond the initial period of three and half months. In fact, such appointment was made on 15th December, 1987 up to 31st March, 1988 and beyond that date there is no order of extension. Petitioners, however, had claimed that their services have been extended from time to time and the same would appear from the attendance register and pay bill voucher in respect of the daily wages appointees. 4. The next important fact is that such services of the petitioners were allegedly regularised by the Special Officer of the said Municipality by the order dated 28.8.1997, and for all these years the petitioners have been working and getting salary. 5. One Dr. Brij Lal Agrawal (respondent no.7), Ex-Ward Commissioner of the Municipality complained to the District Magistrate concerned pointing out that such illegal appointments are leading to financial crises in the said Municipality. On the basis of the said complaint, the District Magistrate directed enquiry to be made by the S.D.O. Raxual-cum-Special Officer, Raxual Municipality vide his letter dated 30th March, 1998 with a direction to stop payment to the persons who were so appointed in 1997. The enquiry thus followed and revealed that there is no advertisement for filling-up such posts nor has there been any correspondence with the employment exchange. On the basis of the said enquiry report the District Magistrate by the order dated 21.10.1998 (Annexure-13) directed not to take any work from such appointees and not to pay them salary. 6. On the basis of the said order of the District Magistrate, the Special Officer of the said Municipality also passed order on 30.10.1998 (Annexure-14) not to take any work with immediate effect. 6. On the basis of the said order of the District Magistrate, the Special Officer of the said Municipality also passed order on 30.10.1998 (Annexure-14) not to take any work with immediate effect. These two orders has been challenged by the petitioner on the following grounds which are noted below:- I. The first ground of challenge is that the petitioners services have been terminated as a result of Annexures-13 and 14 without giving them any opportunity of hearing; II. The services of the petitioners have been regularised in 1997, and the services of the regular employees cannot be terminated in the way it has been done; III. The Collector has no power to pass the order which is at Annexure-13, as according to the learned counsel for the petitioner the only power to the District Magistrate/ Collector is to suspend within the limits of the district the execution of any resolution or order of the Commissioners of any municipality, or prohibit the doing within those limits of any act which is about to be done, or is being done, in pursuance of, or under cover of, this act, if, in his opinion the execution of the resolution or, order, or the doing of the act, is likely to lead to a serious breach of the peace, or to cause serious injury to the public, or to any class or body of person. This power is given to the District Magistrate/Collector under Section 383 of Bihar and Orissa Municipal Act, 1922. Therefore, the learned counsel contended relying on the said section 383 that this is the only power to the Collector in the affairs of the said Municipality. The impugned order of the Collector which is at Annexure-13 does not come Within the purview of that power and• as such it is dehors the provisions of the Act; IV. Since the Special Officer of the Municipality has acted, not on his own, but under the dictate and in obedience to the order of the District Magistrate, his order is equally bad on the principles of abdiction and surrender of discretion to an outside agency. 7. In the counter affidavit which has been filed in this matter the case of the Commissioner is that the appointment of the petitioners are beyond the sanctioned strength which is of 45 employees including all categories. 7. In the counter affidavit which has been filed in this matter the case of the Commissioner is that the appointment of the petitioners are beyond the sanctioned strength which is of 45 employees including all categories. The next point which has been taken is that rule has been framed in the matter of appointment under section 42 of the Bihar and Orissa Municipal Act, 1922, and under such rule selection of the candidate shall be made by a committee consisting of Chairman of the Municipality, Executive Officer, if any, a Municipal Commissioner elected by the Commissioners at a meeting, Sub-divisional Officer or an officer of the Sub-divisional Headquarters, a local officer of the technical department concerned of the State Government. On the strength of the said rule, the stand taken in the counter affidavit is that the Executive Officer is not at all authorised to make appointment. Apart from that it has also been stated that the recruitment to the post under rule-2 of the said rule can only be made after publication of the vacancy in at least two consecutive issues of two local newspapers having the largest circulation and pasting notices in local public offices. In the counter affidavit it has been asserted that this has not been done. In the counter affidavit it has been stated that though the Executive Officer has written to the Government for sanction of additional staff, but such sanction has not been granted and communicated by the Government. Therefore, the appointments of the petitioners are back door appointments which are void ab initio. It has also been stated that the appointments including appointment of the petitioner in the said Municipality were illegally done by one Sundar Ram, the then Sub-divisional Officer-cum-Special Officer of the Raxaul Municipality. The District Magistrate sent a report to the Joint Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna for initiating strict disciplinary proceedings against Sri Sunder Ram for making illegal appointments in the Raxaul Municipality. It has also been stated in the counter affidavit that the appointments of the petitioner have not been extended. Therefore, there is no question of regularisation of such appointments. The stand in the counter affidavit is that since the initial appointment itself is void there is no question of regularisation. 8. It has also been stated in the counter affidavit that the appointments of the petitioner have not been extended. Therefore, there is no question of regularisation of such appointments. The stand in the counter affidavit is that since the initial appointment itself is void there is no question of regularisation. 8. Respondent no.7 on whose complaint enquiry was initiated also filed counter affidavit reiterating the same contentions which are taken in the counter affidavit of respondent nos. 4, 5 and 6. 9. In the rejoinder affidavit to the counter affidavit filed by respondent nos. 4, 5 and 6 the major objections raised in the main counter affidavit have not been denied, and there is no rejoinder to the counter affidavit filed by respondent no. 7. Nothing has been disclosed in the rejoinder affidavit to show that prior to appointment of the petitioners there has been any advertisement as per rule or there is any formation of the Committee. About their extension of service beyond three and half months, the petitioners have not been able to show any order for extension of services. 10. On the aforesaid rival contentions following factual position emerges. (a) The appointment of the petitioners have been made without following the rules as framed under section 42 of the said Act. In fact, there has been no selection procedure; (b) The appointments have been made beyond the sanctioned strength; (c) There is no written order for extending the services of the petitioner beyond the initial period of three and half months. 11. In view of the aforesaid facts, this Court answers the question posed above in paragraph-6 as follows :- This Court has to answer the first ground of attack of the petitioner that their services have been terminated without giving them any opportunity of hearing. This question is no longer open for further discussion in view of the fact that it is concluded by several decisions of the Patna High Court wherein it has been held that where appointments have taken place without following the prescribed rules and without issuing any advertisement and selection procedure, such appointments being violative under Articles-14 and 16 of the Constitution which is a nullity in law. Reference in this connection may be made to the judgment of the Division Bench in the case of Satyendra Prasad vs. The State of Bihar & ors. reported in 1991 (2) PLJR page-460 para-5. Reference in this connection may be made to the judgment of the Division Bench in the case of Satyendra Prasad vs. The State of Bihar & ors. reported in 1991 (2) PLJR page-460 para-5. In the said Division Bench decision the learned Judges of the Division Bench held that in such a situation the employee does not derive any right to continue in the employment. And on the application of the principles of natural justice to such appointment it has also been held in another Division Bench Judgment of the Patna High Court in the case of Teja Prasad & ors. vs. The State of Bihar & ors. reported in 1992(2) PLJR Page-568 that where appointment is void, the position in law is no such appointment ever existed and there is no question of taking away of any vested rights. The learned Judge held where vested rights are to be taken away, the rules of natural justice are to be followed by giving an opportunity of hearing. But there the person has not acquired any right, as in the cases of void appointments the rules of natural justice have no application and are not required to be followed. 12. This court is in respectful agreement with the aforesaid decision given by the two Division Benches of this Court and holds that in the facts of this case the appointment of the petitioner were initially void, and the petitioners were not entitled to get the benefit of principles of natural justice or of hearing before the appointments are put to an end. 13. The next question raised by the petitioner is one of regularisation. The answer to this question logically follows from what is discussed above that when the appointment is not initially legal but is void abinitio, it cannot be regularised. If the appointment initially suffers from some irregularities regarding procedure, that can be regularised, but a void thing cannot be regularised. When there is no structure, there cannot be any super structure. In fact the Supreme Court has said in the case of R.N. Nanjundappa vs. T. Thimmaiah & Anr. reported in A.I.R. 1972 S.C. page-1767 as follows :- "If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the constitution illegality cannot be regularised. In fact the Supreme Court has said in the case of R.N. Nanjundappa vs. T. Thimmaiah & Anr. reported in A.I.R. 1972 S.C. page-1767 as follows :- "If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be 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." 14. In view of the aforesaid clear legal position laid down by the Hon'ble Supreme Court, the order of the so called regularisation of the petitioner's appointment does not clothe the initial appointment with any semblance of legality. The appointments of the petitioners are uncurably bad and cannot be regularised. 15. So far question nos. 3 and 4 are concerned, they are taken up together. It has been fairly conceded by the learned counsel for the respondent-Municipality that under section 383 of the Act, the Collector/District Magistrate does not have any jurisdiction to direct the Special Officer of the Municipality not to take any work from the persons who are not legally appointed, and also not to pay them, and the Special Officer of the Municipality also surrendered his power to the same direction and dictate and in obedience to the order of the District Magistrate he passed similar order. Apart from that, from paragraph-6 of the counter affidavit it also appears that the Special Officer requested the District Magistrate for taking appropriate action in respect of the appointments made in the said Municipality which are beyond the sanctioned strength. Therefore, in the matter of taking steps about such appointment, the Special Officer has abdicated and surrendered his discretion to an outside agency. This is not permissible in law. Reference in this connection may be made to the judgment of the Supreme Court in the case of The Purtabpur Company Ltd. VS. Cane Commissioner of Bihar & ors. reported in A.J.R. 1970 S.C. page 1896. This is not permissible in law. Reference in this connection may be made to the judgment of the Supreme Court in the case of The Purtabpur Company Ltd. VS. Cane Commissioner of Bihar & ors. reported in A.J.R. 1970 S.C. page 1896. In that case power exercisable by the Cane Commissioner was in fluenced after discussion with the Chief Minister. In that context, the Learned Judges of the Supreme Court held that while exercising the power the Cane Commissioner cannot abdicate his function in favour of anyone and not even in favour of the State Government or the Chief Minister. The learned Judge has held in that case that power of the Cane Commissioner has been virtually exercised by the Chief Minister, an authority who is extraneous in the context. 16. Here also same thing has happened. Here the function of the Special Officer has virtually been exercised by the District Magistrate. Therefore, the impugned order which is at Annexure-13 passed by the District Magistrate is quashed. Similarly the impugned order which is at Annexure-14 passed by the Special Officer on the basis of Annexure-13 is also quashed. 17. But the Court has already held that the order of appointment of the petitioners are void. Therefore, as a result of quashing of Annexures-13 and 14, the petitioner's appointments are not restored, nor are they put back in service. It is well settled that quashing of one illegal order will not revive another illegal order. This is against the principles of equity. 18. The Apex Court has held that High Court's power under Article-226 to be exercised keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play' (See Shangrila Food Products Ltd. vs. L.I.C. (1996)5 SCC 54 , Para. 11, at p.59 of the report). So this Court directs the Special Officer, who is respondent no. 5 to pass necessary order by exercising his own discretion in respect of the so called appointment of the petitioners in the light of the observation made in this judgment. Such order may be passed by him within a period of fortnight from the date of service/receipt of a copy of this order upon him. This writ petition is thus disposed of. There will be no order as to costs.