- Bookmark
- Share
- CaseIQ
Om Prakash Narayan And Others v. State Of Bihar And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The opinion concerns two writ applications challenging the same notification dated 5 November 1983 issued by the Chief Engineer in the Department of Irrigation, Patna, which terminated the services of the petitioners with immediate effect. Because the impugned order, and the questions of fact and law, were common to both applications, they were heard together and disposed of by this judgment.
The petitioners were originally engaged as muster-roll workers in 1979–1980 in Class III and IV posts in the Irrigation Department and worked satisfactorily until 18 May 1983. On 18 May 1983, by notifications and with the approval of the departmental establishment committee, they were absorbed in temporary capacity into various regular sanctioned permanent posts (peons, bill clerks, tracers, storekeepers, blue printers, sweepers) in Class III and IV. Their maximum salary was Rs. 460.
The Department's counter-affidavit alleged these absorptions/appointments contravened government instructions (circulars Nos. 941 dated 19 February 1981 and 517 dated 2 April 1983) which, according to respondents, prohibited appointment from outside and required adjustment of work-charged staff. Specific procedural allegations included failure to call Employment Exchange names in prescribed pro forma, no merit list based on school/college marks, no public announcement/advertisement of vacancies, and non-compliance with reservation policy. The counter-affidavit therefore characterized the petitioners' appointments as illegal/irregular and stated that, after enquiry, their services were terminated.
The petitioners replied that there was no fresh appointment on 18 May 1983 but an absorption against long-standing vacant posts; they asserted compliance with the cited government circulars, reliance on a Chief Engineer letter of 10 January 1982 showing many vacancies remained (annexure 5), prior information to the Employment Exchange (letter No. 792 dated 22 April 1983), attempts to ascertain availability of earlier work-charged staff, and compliance with reservation for many petitioners. They contended the departmental establishment committee procedure and the Chief Engineer's actions were lawful.
Legal Issues Presented
- Whether, when an appointment is alleged to be irregular or illegal, the appointing authority may terminate the employee without first affording the employee a reasonable opportunity to know and respond to the allegation (i.e., whether natural justice requires notice/show-cause before termination in such circumstances).
- Whether the petitioners' absorptions into regular sanctioned posts on 18 May 1983 were illegal or irregular in contravention of the government circulars and related procedures relied upon by the respondents.
Arguments of the Parties
Petitioners' Arguments
- The petitioners contended there was no fresh appointment on 18 May 1983; rather, they were absorbed into vacant sanctioned posts where they had previously served on muster-roll since 1979–80.
- They asserted compliance with the government circulars (Nos. 941 and 517) because work-charged staff appointed up to 21 August 1975 had been adjusted first and, even then, many vacancies remained (625 or 626 posts), against which they were absorbed.
- They relied on annexed documents, including a Chief Engineer letter dated 10 January 1982 (annexure 5) and communication to the Employment Exchange (letter No. 792 dated 22 April 1983), to show vacancies were notified and that enquires had been made about available work-charged staff.
- They asserted compliance with reservation policy for specific petitioners and argued the establishment committee's recommendation and the Chief Engineer's action were within statutory powers.
Respondents' Arguments
- The counter-affidavit alleged the appointments were made in contravention of government instructions (circulars Nos. 941 and 517) and therefore illegal/irregular; the petitioners were not work-charged employees and were appointed from outside against rules.
- Specific procedural defects were alleged: failure to obtain names in prescribed pro forma from Employment Exchange, absence of a merit list based on school/college marks, no public advertisement of vacancies, and non-observance of reservation policy.
- The respondents' counsel argued that when an appointment is irregular or illegal the appointee has no right to hold the post and therefore no show-cause notice was required before termination; reliance was placed on the Full Bench decision of Bijoy Kumar Bharti v. State [1984—I L.L.N 365].
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bijoy Kumar Bharti v. State [1984—I L.L.N 365] | Authorities relied on by respondents for the proposition that if an appointment is irregular or illegal, no show-cause notice is required because the appointee has no right to hold the post. | The respondents relied on this Full Bench decision. The court, however, did not accept the absolute proposition as applied here: it held that even where appointments are alleged to be illegal or irregular, principles of natural justice require that the affected employee be afforded a reasonable opportunity to know the allegations and to be heard before termination; accordingly the termination notification was quashed. |
Court's Reasoning and Analysis
The court began by accepting the general legal principle that an appointee whose appointment is established to be illegal or irregular would not have a right to hold the post. However, the court identified a distinct and controlling procedural question: whether, before declaring an appointment irregular or illegal and terminating service on that basis, the employee must be afforded a reasonable opportunity to know and contest the allegation.
The court analyzed the requirement of natural justice in this context. It reasoned that an abrupt unilateral decision by the appointing authority to terminate an employee on the ground that the appointment is illegal or irregular, without informing the employee of the reasons and without allowing him to respond, would negate principles of natural justice and be harsh, unjust and unfair—particularly where the employee has served for many years and believes his appointment to be valid.
The court observed that allowing the appointing authority to be the sole judge of its prior act (i.e., to decide at one point that an appointment was valid and later declare it invalid without affording a hearing) would permit potential abuse of power. The court held that, even if the appointing authority ultimately arrives at the same conclusion after hearing the employee, the denial of a reasonable opportunity to be informed and to respond cannot be justified.
Applying these principles to the facts, the court noted that in this case the alleged illegality/irregularity was first raised for the petitioners in the department's counter-affidavit filed in these writ petitions. The petitioners had rebutted those allegations by annexing documents indicating compliance with the government instructions and demonstrating that vacancies existed and that procedures (such as informing the Employment Exchange and enquiring about earlier work-charged staff) had been followed. The court concluded that, had the petitioners been given the opportunity to be heard before termination, they might have persuaded the appointing authority and shown that their appointments were not illegal or irregular.
On that basis the court found the termination notification to be procedurally defective for denial of natural justice and therefore unjustified.
Holding and Implications
Holding:
The notification dated 5 November 1983 terminating the services of the petitioners is quashed.
The respondents are directed to absorb the petitioners in the services of the Irrigation Department. Both writ applications are allowed, but without costs.
Implications:
The direct effect of the decision is the restoration/absorption of the petitioners into service and the quashing of the termination order. The court emphasized the requirement of affording reasonable opportunity consistent with principles of natural justice before terminating services on the ground of alleged illegality or irregularity of appointment. The opinion does not purport to set out or announce a broader new legal rule beyond this application of natural justice, and it does not explicitly state that a new binding precedent is being laid down.
1. The notification, dated 5 November, 1983, issued by the Chief Engineer in the Department of Irrigation, Patna, terminating the services of the petitioners has been challenged in both the writ applications. Since the same impugned order has been challenged in both the applications and the questions of fact and law raised are common, they have been heard analogous and are being disposed of by this judgment. The petitioners have further prayed for a suitable direction to the respondents to absorb them permanently in the services of the Department of Irrigation.
2. The Chief Engineer of the Irrigation Department being the proper appointing authority, appointed the petitioners some times, in the year 1979 and 1980 as muster-roll workers in class III and IV posts in the Department of Irrigation. As such they satisfactorily worked till 18 May, 1983. As and when vacancy arose in the regular sanctioned permanent posts in class III and IV the Chief Engineer appointed them in temporary capacity on such various posts of peons, bill clerks, tracers, storekeepers, blue printers and sweepers. This was so done on 18 May, 1983, by different notifications issued by the Department of Irrigation and these appointments were made in consultation with the approval of the departmental establishment committee. It has not been disputed that the proper and competent authority to make these appointments on all regular sanctioned permanent posts in class III and IV was the Chief Engineer of the department (respondent 4). These petitioners being class III and IV employees were earning a maximum salary of Rs. 460. Suddenly, by a notification No. 3486 issued by the Chief Engineer (respondent 4) on 5 November, 1983, the services of these petitioners were terminated with immediate effect.
3. In the counter-affidavit filed by an assistant of the Department of Irrigation, it was alleged that the appointments were made in contravention of the Government instructions. In other words, it has been stated that the appointments of class III and IV emyloyees in the regular establishment from outside had been strictly stopped vide circular letter No. 941, dated 19 February, 1981, and 517, dated 2 April, 1983, specifically indicating that only those employees, who were working in the work-charged establishment, were to be adjusted against the vacancies in the regular establishment. It was further alleged that, while making these appointments, the Chief Engineer neither followed these instructions nor did he follow the instructions of the Government, dated 28 January, 1976. It was alleged—
(a) that the Chief Engineer did not call for the names in the prescribed pro forma from the Employment Exchange;
(b) the merit list was not prepared on the basis of the marks obtained in the school and college examinations;
(c) the vacancies were not publicly announced and no advertisements were made; and
(d) the policy regarding reservation, etc, was not followed.
It was alleged that the petitioners, not being the work-charged employees, were not eligible to be appointed against vacant posts in the regular establishment by way of absorption. The petitioners were never appointed on ad hoc basis but purely on muster-roll and that too in violation of the instructions. It was stated that their appointments on muster-roll were illegal and irregular and, after an enquiry in relation to these appointments, their services were terminated. The recommendation of the establishment committee was also illegal and in violation of the Government instructions contained in annexures B and C to the counter-affidavit.
4. Controverting these various allegations made in the counter-affidavit, the petitioners in their reply, reiterated their stand that there was, in fact, no fresh appointment of petitioners on 18 May, 1983. They had already been appointed on muster-roll in 1979–80 and on 18 May, 1983, as and when vacancies arose in the regular sanctioned permanent posts in class III and IV, they were absorbed in the services of the Irrigation Department in consultation with and approval of the departmental establishment committee. It has been firmly stated that there was no violation of the Government instructions either in their initial appointment muster-roll on in their later absorption in the services of the department. It has been categorically asserted that the alleged Government instructions contained in their circulars Nos. 941 and 517, dated 19 February, 1981 and 2 April, 1983, respectively, were, in fact, not violated because, in accordance with those circulars, all work-charged staff appointed till 21 August, 1975, were first absorbed in class III and IV posts in the Irrigation Department and only then fresh appointments were made.
5. Relying on a letter of the Chief Engineer addressed to the Engineer-in-Chief-cum-Special Secretary of the Irrigation Department, dated 10 January, 1982, it was pointed out that the said letter itself indicated that all work-charged staff, falling in the said category, had already been adjusted in the Irrigation Department and even then 625 posts remained vacant in the regular establishment and it was against these vacant posts that the services of the petitioners were absorbed by the Irrigation Department on 18 May, 1983. The Chief Engineer had enquired even from other circles and divisions whether any person appointed before 21 August, 1975, were still available and after receiving no reply, in respect of the enquiry made by him, he proceeded to absorb the services of the petitioners on 18 May, 1983. True copy of the letter, dated 10 January, 1982, has been annexed marked annexure 5.
6. The alleged irregularity and illegality has been denied and it appears that vide letter No. 792, dated 22 “April 1983, the Employment Exchange had been duly informed by the Chief Engineer about the available vacancies. Further, he also wrote to other Chief Engineers enquiring whether any work-charged staff was available for appointment. In so far as compliance of the policy of reservation is concerned, it is evident from the fact that petitioners 6, 15, 16, 19, 20, 22, 24, 26, 27, 28, 29, 31, 33, 34 and 35 of Civil Writ Jurisdiction Case No. 5280 of 1983 have been appointed only against the reserved quota. In fact, there was no fresh appointment of the petitioners. They were only absorbed in service and the policy of reservation was complied with. Likewise there was no violation of the Government instructions contained in Memo Nos. 941 and 517, dated 19 January, 1981 and 2 April, 1983, because in accordance with the same all old work-charged employees had been absorbed in services of the Irrigation Department but even then a large number of posts (626) were still available in the regular establishment and the petitioners were then properly absorbed in those vacant posts in regular establishment. It appears that repeated requests were made to the Government by the Chief Engineer seeking approval for making regular appointments on the vacant posts. It was indicated therein that the petitioners faced hardships due to their long continuation in the muster-roll and even though, the posts were available in regular establishment but there being no clear instruction issued by the Government, the petitioners continued to work on muster-roll when, subsequently, their services were absorbed in the regular establishment on 18 May, 1983. The proceeding and the recommendation of the establishment committee, which formed the basis of absorption of the petitioner's services, was legal and proper and within the statutory powers of the Chief Engineer as contained in annexure I of both the writ applications.
8. The learned counsel for the respondents contended that no show-cause notice was required to be served in the case of irregular/illegal appointment since the petitioners have no right to hold the posts. Reliance was placed on a Full Bench decision of this Court in the case of Bijoy Kumar Bharti v. State [1984—I L.L.N 365].
9. There cannot be any dispute on the question that once it is established that appointments were irregular or illegal, the petitioners would have no right to hold the posts. But then the real question arises for consideration is as to whether before deciding any such appointment as irregular/illegal, the employee would be entitled to know as to how his appointment was treated as irregular or illegal. In my opinion, it would amount to negation of the principles of natural justice. If a person who has been serving in the job for long years and to his mind he has been validly appointed he cannot be suddenly thrown to gallows without being afforded a reasonable opportunity to show as to how his appointment in the service is irregular or illegal. If the employee is not allowed to know the cause before he is thrown out of services, no one in the service would be safe. Nothing would be more harsh, unjust and unfair to an employee, who, having served for years together, may be temporary, is all of a sudden faced with an order of termination stating that his appointment is illegal or irregular. True it is, that he would not have a right to hold the post if his appointment is irregular or illegal, but before arriving at such a decision, there must be an act of fair play and the employee concerned must be allowed to know and be confronted with the situation so that he can go out of the job being satisfied that he had been illegally or irregularly appointed. It cannot be left to the appointing authority to take a sudden unilateral decision without affording a reasonable opportunity to the employee concerned, who may perhaps, legitimately persuade the appointing authority and establish that his action is mala fide, arbitrary and/or illegal. It would be dangerous to grant legal sanction to such unilateral decision of the appointing authority who shall be free to be judge of his own act, in determining that at one point of time the person concerned was validly appointed and yet at another point of time the appointing authority shall turn back and unilaterally decide that now the said appointment is illegal or irregular. His power may be unquestionable but abuse of power must be checked and before arriving at such a conclusion, it would be necessary in the interest of justice, equity and fair play that the person concerned is afforded reasonable opportunity to know how his appointment was illegal or irregular and, may be that even after such reasonable opportunity afforded to the person concerned to establish if otherwise, the appointing authority may arrive at the same conclusion. But in any case natural justice cannot be denied to him.
10. The facts of these cases are glaring, wherein the alleged irregularity or illegality was for the first time made known to them only in the counter-affidavit when they came to this Court in these writ applications. These illegality and/or irregularity alleged in the counter-affidavit have been firmly rebutted by annexing documents and thus establishing that the regulations issued by the Government regarding those appointments ware, in fact, followed and there was no irregularity or illegality. If the same opportunity would have been afforded to these petitioners before taking such a unilateral decision, they could have equally satisfied the appointing authority that their appointments were neither illegal nor irregular and that the order of termination was itself without any foundation and based on extraneous grounds.
11. In this view, the notification dated 5th November, 1983, terminating the services of these petitioners is quashed and the respondents are directed to absorb them in the services. Both the applications are, accordingly allowed but without costs.
Alert