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2012 DIGILAW 511 (PAT)

Parwez Akhtar Ansari v. State of Bihar

2012-03-26

NAVIN SINHA

body2012
ORDER Heard learned Counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 14.8.2006 as affirmed on 14.10.2011 removing him from service and declining regularisation. 2. Learned Counsel for the petitioner submits that he was appointed as a Lower Division Clerk on 3.12.1994. Though it was for a duration of three months only it was extended at regular intervals and ultimately regularized on 29.12.1995. After regularisation termination could not have been done in the present manner and that too after 12 long years of service. This Court in CWJC No. 11776 of 2006, of a similar nature, did not approve of termination after 11 long years of service on the ground of any alleged illegality/irregularity in service. In (2010) 9 SCC 247 (State of Karnataka Vs. M. L. Kesari) directions have been given for regularisation of such persons. 3. It was alternately contended that if the petitioner was an illegal/irregular appointee and relief has to be denied on that ground, those who illegally inducted him in to service must equally be made answerable as held in AIR 1996 SC 715 (Delhi Development Authority Vs. Skeeper Construction and anr.) as also in CWJC no. 6078 of 2009 (Hem Chandra Jha Vs.State of Bihar). 4. Counsel for the State submitted that the appointment being illegal any claimed regularisation was of no consequence. The earlier order dated 14.8.2006 for removal was found to be in violation of principles of natural justice. The fresh impugned order is in accordance with the directions contained in CWJC No. 16155 of 2006 preferred by the petitioner. It was observed that if it was a backdoor appointment the petitioner would not be entitled to any benefit. The order dated 14.10.2011 is reasoned disclosing satisfaction how the appointment was contrary to the law. 5. The writ petition contains no pleading with regard to initiation of any prosecution against the officer who appointed him. No claims outside the pleadings can be raised. If the petitioner contends that he obtained employment under compelling circumstances it was for him to disclose what the compelling circumstances were. It was a voluntarily conscious act of the petitioner in obtaining appointment contrary to law. If things have gone awry for him he cannot complain now. 6. The petitioner was initially appointed on 3.12.1994 for a period of three months only. It was a voluntarily conscious act of the petitioner in obtaining appointment contrary to law. If things have gone awry for him he cannot complain now. 6. The petitioner was initially appointed on 3.12.1994 for a period of three months only. It is not his case that any regular procedure for appointment was followed. The appointment was extended on 4.4.1995 till June 1995. It was again extended on 9.6.1995 till September 1995 in like manner. On 28.9.1995 it was likewise extended till December 1995 till it came to be regularized on 29.12.1995. 7. In AIR 1992 SC 789 (Delhi Development Horticulture Employees’ Union Vs. Delhi Administration, Delhi) while considering the claim for regularisation it was observed at paragraph 23 as follows:- “23…..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 technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years…..” 8. There can be no doubt that the initial appointment was contrary to law. It was extended at short durations only to give him a foothold for entry in to government service and seek regularisation on that ground and which he obtained. Regularisation has long been held not to be a mode of appointment. If the initial entry in to service was contrary to the law regularisation cannot condone the illegality visiting it the color of sanctity in the law. No procedures have been followed at the stage of regularisation. The order does not mention whether any open competitive selection was held at this stage. The petitioner does not plead that any others were being considered along with him and that he came out successful in the process as compared to others. 9. In (2006) 1 SCC 667 (State of U.P. Vs. Neeraj Awasthi and others) relying upon Delhi Development Horticulture Employees’ Union (supra) it was held that regularisation cannot be claimed as a matter of right. 9. In (2006) 1 SCC 667 (State of U.P. Vs. Neeraj Awasthi and others) relying upon Delhi Development Horticulture Employees’ Union (supra) it was held that regularisation cannot be claimed as a matter of right. An illegal appointment cannot be legalised by taking recourse to regularisation. The Constitution prohibits such backdoor appointments holding at paragraph 75 and 76 as follows:- “75. The fact that all appointments have been made without following the procedure, or services of some persons appointed have been regularised in the past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetuate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well settled. (See State of A.P. Vs. S.B.P.V. Chalapathi Rao, SCC ; Jalandhar Improvement Trust Vs. Sampuran Singh, SCC and State of Bihar Vs. Kameshwar Prasad Singh, SCC. 76. In the instant case, furthermore, no post was sanctioned. It is now well settled when a post is not sanctioned, normally, directions for reinstatement should not be issued. Even if some posts were available, it is for the Board or the Market Committee to fill up the same in terms of the existing rules. They, having regard to the provisions of the Regulations, may not fill up all the posts.” 10. It stands to reason that if regular sanctioned vacant posts were available there could have been no justification for making Ad hoc appointment of the petitioner for a period of three months and that too without any open advertisement and selection and then extending the same at regular intervals till it finally came to be regularized. 11. In (2006) 5 SCC 493 (National Fertilizers Ltd & ors. Vs. Somvir Singh) it was held that regularisation was not a mode of appointment holding at paragraph 18 as follows:- “18. Regularisation, furthermore, is not a mode of appointment. 11. In (2006) 5 SCC 493 (National Fertilizers Ltd & ors. Vs. Somvir Singh) it was held that regularisation was not a mode of appointment holding at paragraph 18 as follows:- “18. Regularisation, furthermore, is not a mode of appointment. If appointment is made without following the rules, the same being a nullity the question of confirmation of an employee upon the expiry of the purported period of probation would not arise. The Constitution Bench in Umadevi (3) made a detailed survey of the case-laws operating in the field.” The contention for a long continuance before termination of such appointment was rejected in para 26 holding as follows:- “26. It is true that the respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents have worked for some time, the same by itself would not be a ground for directing regularisation of their services in view of the decision of this Court in Umadevi.” 12. Disapproving of orders for regularisation and consideration of such claims based on any continuance for ten years notwithstanding the enunciation of the law by the Supreme Court on the issue it was observed in (2008) 10 SCC 1 (Official Liquidator Vs. Dayanand) at paragraph 90 as follows:- “90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.” 13. The appointment order of the petitioner dated 3.12.1994 does not suggest or make any reference to any advertisement whereafter the so called committee considered his case. The fact that a committee may have scrutinized his application is of no relevance at all as there was complete lack of transparency in the process of appointment. Declining any submission for generosity on the plea of long continuance in service for 15 years it was held in (2005) 4 SCC 209 (Binod Kumar Gupta Vs. Ram Ashray Mahoto) at para 13 as follows:- “13. The “advertisement” was no “advertisement” as required by the High Court. Without adequate notice no fair opportunity was given to others who might have applied. Apart from this, it does not appear from the records that there was any selection procedure followed at all. There is no explanation why the Selection Committee had been bypassed nor any acceptable reason why the persons who had applied as far back as in 1986 were ignored. This singular lack of transparency supports the finding of the High Court that the appointments were not made bona fide. The District Judge, who was ultimately responsible for the appointment of Class IV staff violated all norms in making the appointments. It is regrettable that the instructions of the High Court were disregarded with impunity and a procedure evolved for appointment which cannot be said to be in any way fair or above board. The submission of the appellants that they had been validly appointed is in the circumstances unacceptable. Nor can we accede to their prayer to continue in service. No doubt, at the time of issuance of the notice on the special leave petition, this Court had restrained the termination of services of the appellants. The submission of the appellants that they had been validly appointed is in the circumstances unacceptable. Nor can we accede to their prayer to continue in service. No doubt, at the time of issuance of the notice on the special leave petition, this Court had restrained the termination of services of the appellants. However, having regard to the facts of the case as have emerged, we are of the opinion that this Court cannot be called upon to sustain such an obvious disregard of the law and principles of conduct according to which every judge and anyone connected with the judicial system are required to function. If we allow the appellants to continue in service merely because they have been working in the posts for the last 15 years we would be guilty of condoning a gross irregularity in their initial appointment. The High Court has been more than generous in allowing the appellants to participate in any fresh selection procedure as may be held and in granting a relaxation of the age limit.” 14. In (2009) 4 SCC 342 (State of Karnataka & ors Vs. G. V. Chandrashekar) the claim was for regularisation based on ad hoc appointment having continued for ten long years. Rejecting the submission, relying on a plethora of judgements to the contrary that no appointment could be made contrary to the constitutional mandate of Article 14 of the Constitution it was held at para 32 as follows:- “32. …..We feel bound by the observations made therein. Initial recruitment of the respondents being wholly illegal and contrary to the constitutional scheme of this country, the impugned judgment of the High Court cannot be upheld. It is set aside accordingly.” 15. More recently in (2009) 5 SCC 65 (State of Bihar Vs. Upendra Narayan Singh & ors.) it was noticed and observed at para 44 that such appointments of the present nature were unfortunately the common phenomenon and those bestowed with the powers to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favoritism and nepotism with impunity violating constitutional mandate. The spoiles system had developed a mechanism for providing appointment to the chosen and favoured. Noticing a similar claim for regularisation as presently it was observed at para 63 as follows:- “63. The spoiles system had developed a mechanism for providing appointment to the chosen and favoured. Noticing a similar claim for regularisation as presently it was observed at para 63 as follows:- “63. The so-called regularisation of the services of the respondents on which heavy reliance was placed by the learned Senior Counsel appearing on their behalf in the context of averments contained in Para 4 of the counter-affidavit filed before this Court by Shri Prasannjeet Kumar Singh (Respondent 3 herein) is a proof of nepotism practised 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 none exists.” 16. The reliance on the case of M. L. Kesari (supra) is misconceived. The ratio of the judgement lays down that if a person was appointed on daily wage but against a regular sanctioned vacancy and had continued in such capacity for over ten long years only in that case was he entitled to be considered for regularisation. The petitioner was not appointed against a regular sanctioned vacancy. 17. The very initial appointment itself being illegal in light of the discussions contained in Official Liquidator (supra) and Binod Kumar Gupta (supra) where long continuance was not considered sufficient to grant relief the Court finds it difficult to hold in favour of the petitioner. 18. A Division Bench of this Court in 1995 (23) PLJR 573 (Bimal Kishore Rai Vs. The State of Bihar & ors.) strongly deprecated appointments of the present nature and a claim for regularisation based on the same. It was held at paragraph 14, 15 and 17 as follows:- “14. It, therefore, appears to be well-settled that an irregular appointment may be regularised, but an appointment made in breach of statutory rules, law or the constitutional provisions is not irregular, but illegal and void. An illegal or void act cannot be regularised. Regularisation does not connote permanency and, therefore, no person who claims to have been regularised can claim that he has been confirmed in service. Where regularisation is permissible, the action which was irregular is cured, but the nature of the appointment remains the same. An illegal or void act cannot be regularised. Regularisation does not connote permanency and, therefore, no person who claims to have been regularised can claim that he has been confirmed in service. Where regularisation is permissible, the action which was irregular is cured, but the nature of the appointment remains the same. A temporary employee irregularly appointed does not become a permanent employee merely because his services are regularised by confirming to some matter relating to procedure, not going to the root of the mater, which was not complied earlier at the time of his appointment. 15. The decisions of the Supreme Court above noticed confirm our view that the petitioner can be granted no relief whatsoever. He secured an appointment buy illegal means. This can be taken judicial notice of, because all the rules, directions and the constitutional provisions were thrown to the wind when he was appointed. The interestedness of the appointing authority is obvious from the fact that soon after his appointment, only a few months later, he purported to regularise the services of the petitioner. This gives further proof of the malafide intention of the appointing authority. The petitioner was in pari delicto and therefore cannot claim any sympathy by saying that he is not to blame. 17. The other aspect of the matter which also requires prompt attention by the Government is the rampant practice of appointing persons on ad-hoc, short term, or temporary basis, which appointments are thereafter continued by grant of extension from time to time. Ultimately, a proposal is made for regularisation of such appointments. Where such appointments initially made are not in accordance with the rules and/or Circulars of the government or in breach of the principles enshrined in Articles 14 and 16 of the Continuation of India they cannot obviously be regularised. However, there appears to be no sense behind continuing such employees on temporary basis for such long periods. If there is a permanent need for a post, such a post should be sanctioned and filled up in accordance with law on substantive basis…….” 19. The impugned order dated 14.8.2006 holds that the initial appointment in ad hoc capacity was for three months. The extension thereof at regular intervals was not in accordance with law. If there is a permanent need for a post, such a post should be sanctioned and filled up in accordance with law on substantive basis…….” 19. The impugned order dated 14.8.2006 holds that the initial appointment in ad hoc capacity was for three months. The extension thereof at regular intervals was not in accordance with law. The fresh impugned order dated 14.10.2011 after considering the cause shown by the petitioner holds that there was no regular advertisement only whereafter question of any recommendation by the selection committee arises. On 3.12.1993 instructions had been issued that all Class III posts at the regional level was to be filled by examination to be conducted at the block level by the Bihar Public Service Commission. The appointment of the petitioner was contrary to the aforesaid procedure rendering it an outright illegal appointment. 20. In CWJC No. 11776 of 2006 the facts appears to be substantially different. The irregularities in the appointments were discovered in 1994 after which termination followed. Those terminated were reinstated and were sought to be terminated again. In that background the discussion took place granting relief. The case is clearly distinguishable on its own facts. 21. The Court does not concur with the submission on behalf of the State that the petitioner must alone reap the consequences of what he had sown. There cannot be two opinions that in the nature of the appointment made in 1994 the petitioner was needy for a job. His need was exploited by another. There were two players in the game. One who wanted a benefit and the second who was willing to provide him the benefit for a consideration. It is but patent that he could not obtain appointment for three months contrary to procedures for selection through commission without the connivance of those who issued the letter of appointment. The extension of the same from time to time is but an acknowledgement that official authority was abused and misused for personal gain. The continuance of the petitioner was the result of abuse of public power by the concerned. The State may not be answerable for the acts of its officers done beyond their authority. The extension of the same from time to time is but an acknowledgement that official authority was abused and misused for personal gain. The continuance of the petitioner was the result of abuse of public power by the concerned. The State may not be answerable for the acts of its officers done beyond their authority. But if it was in garb of the authority given by the State, the State has a bounden constitutional duty to take the matter to its logical conclusion by taking appropriate action against those who abused the public powers. 22. Learned Counsel for the petitioner rightly placed reliance on Skipper Construction (supra) where it was noticed at para 6 that the officers had flouted the orders against the interest of the authority well concerned in achieving their nefarious design leading to the Court holding as follows:- 6….. The interests of justice demand that the officers found indulging in such acts be proceeded against and dealt with sternly so that it may serve as a lesson to others. A democratic Government does not mean a lax Government. The rules of procedure and/or principles of natural justice are not meant to enable the guilty to delay and defeat the just retribution. The wheels of justice may appear to grind slowly but it is the duty of all of us to ensure that they do grind steadily and grind well and truly. The justice system cannot be allowed to become soft, supine and spineless. …..” Directions were given of the manner in which further action was required to be taken inter alia holding at sub-para (7) as follows:- “(7) It is directed that no court or authority shall be competent to interdict or otherwise interfere with the disciplinary or other proceedings that may be taken against the aforesaid authorities pursuant to this Order. Any further directions necessary in that behalf can be sought for from this Court. The disciplinary proceedings shall be commenced within three months from this date and shall be concluded within one year.” 23. Similar view was expressed by the Division Bench of this Court in the case of Bimal Kishore Rai (supra) holding at paragraph 16 as follows:- “16. In cases where an appointment is found to have been illegally made, the courts quash the appointment and, therefore the appointee suffers the consequence. Similar view was expressed by the Division Bench of this Court in the case of Bimal Kishore Rai (supra) holding at paragraph 16 as follows:- “16. In cases where an appointment is found to have been illegally made, the courts quash the appointment and, therefore the appointee suffers the consequence. However, the real guilty person, namely, the appointing authority goes Scot free. The result is that even though large number of such appointments have been quashed by courts, the appointing authorities have showed total indifference to the orders passed by the courts, and they continue to make such appointments. It is a well-known fact, so far as this State is concerned, that appointment in majority of cases has to be brought. The ordinary citizen who has concern for the law and morality, must suffer, even if in terms of capability and merit he is far superior to the unscrupulous ones, who ,manager the appointments. We have, therefore, felt the need to issue some directions in this regard, so that the appointing authorities, who are primarily guilty in such matters, and who exploit the job seekers taking advantage of their hardship, are equally punished when such illegal appointments are brought to the notice of the government. I, therefore, direct that in each and every case where an appointment is said to have been illegally made, in the sense that the rules governing the appointment have not been followed, and the appointment is made by flouting the law in such a manner that the motive of the appointing authority becomes suspect, simultaneously with the cancellation of such illegal appointment, action must be initiated against the appointing authority, and in appropriate cases they should be immediately suspended pending departmental proceeding. If such action is not taken, courts will doubt the genuineness of the reason shown by the Government for cancellation of such appointment. I direct that this should be complied with by the Government in each and every case where an appointment is sought to be cancelled on the ground that it was illegally made in circumstances which give rise to a suspicion that the appointment was made on extraneous consideration, including money.” 24. I direct that this should be complied with by the Government in each and every case where an appointment is sought to be cancelled on the ground that it was illegally made in circumstances which give rise to a suspicion that the appointment was made on extraneous consideration, including money.” 24. Similar view has been taken in CWJC No. 6078 of 2009 holding as follows:- “If the petitioner secured the appointment contrary to law and continued for long years, there were some in the office of the respondents who aided and abetted it. If the petitioner has to be faulted with they cannot escape scrutiny. The standard by which Government proposes to act by classifying the petitioner as forged appointee not fit to be kept in employment is the same standard the Government will be bound to act with regard to those in whose connivance the petitioner continued in employment for long years. The issue of salary paid to the petitioner in connivance of the officials from the coffer of the Government also arises. If the petitioner has to be terminated, the question of recovery of the salary paid to the petitioner from those who appointed him and permitted him to continue in service causing monetary loss to the Government also arises.” 25. The respondents are directed to initiate an enquiry with regard to the persons who made appointment of the petitioner and its continuance leading to the claimed regularisation and initiate appropriate civil and/or criminal proceeding against those who abused public powers given to them in trust with regard to appointment on a public post. The respondents are also required to take appropriate steps for recovery of the salary paid to the petitioner from such persons as noticed in the case of Hem Chandra Jha (supra). 26. Let this part of this order be complied by respondent no. 2 preferably within a maximum period of six months from the date of receipt and/or presentation of a copy of this order. The writ application is dismissed with directions.