Service Law: Appointments – Illegal appointments – Entitlement to salary or consequential rights of pension and other monetary benefits – Held: Rights to salary, pension and other service benefits are entirely statutory in nature in public service – These rights, spring from a valid and legal appointment to the post – Once it is found that the very appointment is illegal and is non-est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise – On facts, matter pertaining to appointments against Class II or IV posts in the Health Department in Government wherein Committee Report held the appointments to be irregular appointments, illegal appointments and appointments on forged letters and on basis thereof termination orders were passed against the candidates who secured employment on basis of forged documents and whose appointments were illegal and irregular appointees were allowed to continue – In writ petition thereagainst, the Committee Report was quashed with direction to re-instate the employees – As regards irregular appointment, it cannot be said that the appointment of the employees were irregular appointments but are illegal appointment – As such appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment – Such appointments were backdoor entries, an act of nepotism and favoritism and thus from any judicial standards cannot be said to be irregular appointments but are illegal appointments in wholly arbitrary process – Furthermore, since employees have been working for around 25 years, it cannot be said that humanitarian view should be taken to set aside the termination order and regularise their services so as to make them entitled to pension and other retirement benefits.
Allowing the appeals by the State and dismissing the appeals by the candidates, the Court
HELD: 1.1 There is no statutory rule in terms of proviso to Article 309 of the Constitution for appointment to Class III and Class IV categories in the State. The matter of appointment is regulated by the Executive instructions. Chapter I of the Bihar Health Manual deals with Organisation and functions of the Health Department of the State. It was pointed out that from May 1, 1953, the Medical and the Public Health Departments were amalgamated into one department called the Department of Health under the Director of Health Services. It was pointed out that the Director of Health Services is the appointing authority in respect of all non–gazetted appointments in the department including the Subordinate Medical Service. To assist the Director, there is one Additional Director and three Deputy Directors along with other gazetted officers including Assistant Directors of Health Services (M. and C.H.). [Para 24] [1010-B-D]
1.2 A circular was issued by the State on September 5, 1979 with regard to retrenchment of Government/Semi–Government employees appointed on category III and IV temporary posts on ad–hoc basis. Thereafter, separate circulars were issued providing for procedure for appointment on category III and IV posts on December 3, 1980. Similar is the circular in respect of appointment to Category IV post. On January 20, 1992, the State issued a circular regarding transfer and posting of Class III and Class IV employees of Health Department and it was decided that the employees shall be decentralized at the District level. It was communicated that transfer and posting as far as possible shall remain within the jurisdiction of appointing officer. On the basis of the abovesaid circulars and the Government Orders, it is argued that the appointing authority of Class III and Class IV posts is Director, Health Services. However, there was some delegation in respect of certain other administrative matters but there was no delegation in respect of appointment against Class III and Class IV category posts. The powers conferred on Assistant Director in terms of clause 13(c) of Chapter I of Bihar Health Manual empowers Assistant Director (Public Health) to appoint non–gazetted epidemic staff like Health Assistants and Vaccinators against sanctioned posts but only in case of emergency. A finding has been recorded in Ashwani Kumar’s case that 2250 posts were sanctioned whereas 6000 appointments were made. The Tuberculosis eradication under the 20–Point Programme was not an emergency activity which may empower the Assistant Director to make large number of appointments but again such emergent powers could be exercised only in respect of sanctioned posts. [Paras 27–29] [1012-G-H; 1014-D-E; 1015-C-E]
1.3 The exception in respect of appointing authority came with the circular dated December 3, 1980 which contemplated that suitable candidates be selected as per requirement from common merit list by the competent authorities of Secretariat and attached offices; District Collector and equivalent Officer In charge of the Divisional Offices. The Deputy Director–AM, in the subordinate offices of the Directorate of Health Services was not competent to make appointments against Category III or Category IV posts in view of the provisions of the Manual as also in terms of the circular dated December 3, 1980 recorded by this Court in Ashwani Kumar as well. [Para 30] [1015-F-G]
1.4 Though, certain appointments have been made by Civil Surgeon which is not disputed as he was the competent authority but it is submitted that none of the requirements to fill up the public post was adhered to. Appointments were made to the public posts without following any procedure and without there being any sanctioned post. It cannot be said that some of the appointments have been made by Regional Deputy Director as four posts of Assistant Director were converted into that of Regional Deputy Director. The post of Assistant Director was provided in the Directorate of Health Services with no delegation of appointment except in the case of emergency against sanctioned posts. Such Regional Deputy Director has not been conferred power of appointment against Class III and Class IV posts. Therefore, the Assistant Director was incompetent to make appointments against the sanctioned posts except in emergent cases and so is Regional Deputy Director. [Paras 31, 32] [1015-H; 1016-A-C]
1.5 In Civil Appeal arising out of SLP (Civil) No. 20033 of 2012, the respondent was appointed by Deputy Director–AM. Such appointments have been found to be illegal by this Court in Ashwani Kumar. There is no reason to re–examine the appointments made. Such appointments have been adversely commented upon in Ashwani Kumar case. Therefore, no right will accrue in favour of the respondent. [Para 34] [1016-E-F]
Ashwani Kumar & Ors. v. State of Bihar & Ors. (1997) 2 SCC 1 : [1996] 10 Suppl. SCR 120 –
referred to.
1.6 It cannot be accepted that employees have been working for many years, some for more than 25 years, therefore, humanitarian view should be taken to set aside the order of termination and regularise their services so as to make them entitled to pension and other retirement benefits. Where the very root is non–existent, there cannot subsist a branch thereof in the shape of a claim to salary. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. [Paras 35, 36] [1016-G; 1017-A-C]
Rita Mishra & Ors. v. Director, Primary Education, Bihar & Ors. AIR 1988 Patna 26 – approved.
1.7 The appointments made have been examined by five– member Committee. 91 candidates have been found to be a case of irregular appointment. Such candidates are continuing in service. None of the candidates in the instant set of appeals could point out that they were appointed in a manner meant for filling up of vacant post of public appointment i.e. by advertisement and by giving opportunity to all eligible candidates to apply. [Para 38] [1018-B]
1.8 It cannot be said that the appointment of the employees were irregular appointments. Such appointments are illegal appointment in terms of the ratio of Supreme Court judgment in Uma Devi’s case. As such appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. Such appointments were backdoor entries, an act of nepotism and favoritism and thus from any judicial standards cannot be said to be irregular appointments but are illegal appointments in wholly arbitrary process. [Para 44] [1020-G; 1021-A-B]
Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. (2006) 4 SCC 1 : [2006] 3 SCR 953 – relied on.
1.9 The order dated July 12, 2011 or other similar orders passed by the High Court cannot be sustained in law and, thus, are set aside. There is no error in the order of the High Court dated September 24, 2014. [Paras 45-46] [1021-B-C] State of Bihar & Ors. v. Purendra Sulan Kit & Ors. 2006 SCC OnLine Pat 290; State of Karnataka & Ors. v. M.L. Kesari & Ors. (2010) 9 SCC 247 : [2010] 9 SCR 543; The State of Bihar & Ors. v. Binay Kumar Singh & Ors. [2011] 3 PLJR 547 ; State of Bihar v. Kirti Narayan Prasad 2018 SCC OnLine SC 261; Ram Sevak Yadav & Anr. v. The State of Bihar & Ors 2013 Lab IC 1607 (FB); Rita Mishra & Ors. v. Director, Primary Education, Bihar & Ors. AIR 1988 Patna 26; R. Vishwanatha Pillai v. State of Kerala & Ors. (2004)
2 SCC 105 : [2004] 1 SCR 360 ; State of Jharkhand & Ors. v. Manshu Kumbhkar (2007) 8 SCC 249 : [2007]
9 SCR 1069 ; State of Bihar v. Upendra Narayan Singh & Ors. (2009) 5 SCC 65 : [2009] 4 SCR 866 ; Union of India & Anr. v. Raghuwar Pal Singh (2018) 15 SCC
463 : [2018] 4 SCR 1012; Nidhi Kaim & Anr. v. State of Madhya Pradesh & Ors. (2017) 4 SCC 1 : [2017] 2 SCR 527; Chairman and Managing Director, Food Corporation of India & Ors. v. Jagdish Balaram Bahira & Ors. (2017) 8 SCC 670 : [2017] 11 SCR 271 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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