Shiva Kirti Singh

&

Jayanandan Singh, JJ: Heard the parties in respect of all these five Letters Patent Appeals.

2. The orders of the learned Single Judge dismissing the writ petitions filed by the appellants are under challenge in these appeals. In all these cases which relate to appointment to Class III or Class IV posts in the Notified Area Committee, Fatwa, District Patna, the question is - whether appointment of the writ petitioners on daily wage basis or on ad hoc basis or on proper pay scale but without following mandates of Articles 14 and 16 of the Constitution of India and the rules of appointment will confer the petitioners with right to hold the posts as permanent employees or not. In some cases there is an additional issue as to what would be the effect of such employees being declared regularized in services soon after their entry in the manner noticed above.

3. The writ court in these cases has dismissed the writ petitions by holding that since the constitutional provisions and rules of recruitment were not followed hence the appointments are void and cannot be regularized. In that view of the matter, the orders terminating services of the writ petitioners were not interfered with. In fact, when the attention of the writ court was drawn to continuance of similarly appointed employees in employment under the Notified Area Committee, in the case of Ashok Kumar (C.W.J.C No. 2454 of 1999), the court made it clear that similar directions should be given in the case of such private respondents also. That led to similar action of termination of services against other petitioners.

4. On behalf of the appellants, strong reliance was placed on the Division Bench judgment of this Court in the case of Ram Krishna Dubey v. The State of Bihar [2008 (1) PLJR 841]. In that case the petitioner was appointed on temporary basis which was extended from time to time and finally, he was regularized. His services were terminated after long period on the ground that the initial appointment was without the due process of selection procedure. The Division Bench allowed the appeal of the writ petitioner in that case on the ground that after permanent absorption he became a permanent civil servant and acquired the protection or right under Article 311(2) of the Constitution of India which permits removal of a permanent Government employee only in accordance with the procedure laid down by law. It was submitted on behalf of the appellants that the case of Secretary, State of Karnataka v. Umadevi [(2006) 4 Supreme Court Cases 1] was also considered in that case and it was distinguished on the ground that the claim of the appellant was not for regularization but against termination of a permanent employee hence the judgment in the case of Umadevi (supra) was not attracted. On the basis of the aforesaid Division Bench judgment in the case of Ram Krishna Dubey (supra) it has been submitted that since appellants in Letters Patent Appeal No. 38 of 2002 (Dinesh Prasad v. The State of Bihar) and L.P.A No. 777 of 2000 (Rajendra Kumar v. The State of Bihar) were regularized by specific orders after their initial entry on daily wages basis, they must be treated to have become permanent employees and following the ratio of the aforesaid Division Bench decision, they were entitled to all protections of their services as available to a permanent employee.

5. On behalf of the State, the aforesaid submissions were contested and in reply, it was submitted that once the entry of the writ petitioners in services was found to be de hors the rules of appointment and in violation of the constitutional mandates, their services must be treated to be void and such void service cannot clothe the employees with any benefit or protection of regular permanent employee. It was further pointed out that in the case of Ram Krishna Dubey (supra), the post was that of a civil servant to whom Article 311(2) of the Constitution may be available in certain circumstances but the appellants cannot claim the benefit of that Article of the Constitution as admittedly, they are not civil servants or holders of any civil post under the State.

6. Besides offering the aforesaid distinction in the case of appellants and the petitioner in the case of Ram Krishna Dubey, learned Additional Advocate General No. III on behalf of the State made emphatic submission that the aforesaid Division Bench judgment cannot be treated as a good precedent because it is per in curium, without noticing the Full Bench judgment of this Court in the case of Bijoy Kumar Bharti v. The State of Bihar (1983 PLJR 667), another Division Bench judgment of this Court in the case of Ishwar Dayal Sah v. The State of Bihar (1987 PLJR 819) and a judgment of the Apex Court in the case of Ashwani Kumar v. State of Bihar [(1997) 2 Supreme Court Cases 1].

7. In the case of Bijoy Kumar Bharti (supra), Full Bench of this Court had to consider inter-alia, an important question - as to whether the petitioners in those cases were entitled to be heard before the impugned orders of termination of their services were passed. The plea of natural justice and right of being heard was raised in those cases although the termination was because the appointment was found to be illegal and irregular. The Full Bench considered various judgments and held that if the appointment itself suffers from illegality, the person appointed acquires no right to the post and, therefore, a declaration that his appointment was bad in law does not take away any vested right. It was also discussed and held that in such a case, the aggrieved party can only appeal to mercy and has no cause to be shown. Accordingly, it was held that there is nothing unfair in taking the required decision without hearing the person likely to be affected.

8. In the case of Ishwar Dayal Sah (supra), The Division Bench of this Court was concerned with the plea of natural justice in a case where employment had been obtained against a post reserved for scheduled caste by producing false caste certificate. In view of the nature of allegation and serious civil consequences on appointment being declared void ab initio, the Court held that the requirements of natural justice are attracted in such a case but they are not inflexible and doctrinaire and have to be modulated to each situation. So far as Article 311 and its application in such cases are concerned, the Division Bench held that since the appointment was cancelled being void ab initio, the issue involved the validity of very entry into service or appointment at the threshold and hence, Article 311 of the Constitution is not attracted. In order to claim the shelter of Article 311 of the Constitution, a person must first enter into the arena of civil service validly and lawfully. In other words, where the issue is not the validity of entry into the service but some other actions or omissions after entry into the civil service, Article 311 could be attracted but not in cases where the issue is validity of entry into the service itself.

9. In the case of Ashwani Kumar (supra) the employees aggrieved by termination of their services on account of allegation of illegal entry de hors the rules of appointment and constitutional mandate raised a plea that many of them had been confirmed or regularized after initial appointment. In paragraph 11 of the judgment, four points for determination were formulated. Point no. (2) was - whether the confirmation of these employees was legally justified. Point no. (3) was - whether principles of natural justice were violated while terminating services of all these 6000 employees appointed by Dr. Mallick. In paragraph 13 of the judgment, the second point was answered by holding that if the initial entry itself is unauthorized, question of regularizing the incumbent would never survive for consideration and even if such purported regularization or confirmation is given, it would be an exercise in futility. “It would amount to decorating a still-born baby”. Arithmetical illustrations were added by the Apex Court to point out that nothing could come out of nothing and zero multiplied by zero remains zero. It was further held thus :-

“……… Consequently no sustenance can be drawn by the appellants from these confirmation orders issued to them by Dr. Mallick on the basis of the directions issued by the authorities concerned at the relevant time. It would amount to regularization of back-door entries which were vitiated from the very inception….”

10. In paragraph 17 of the judgment it was held that constitution of a committee which was entrusted with the task of looking into the data submitted by the aggrieved employees for deciding the question of legality and validity of their appointments was sufficient to meet the basic principles of natural justice.

11. In view of the aforesaid judgments of Full Bench and Division Bench of this Court and in view of the judgment of the Apex Court noticed above, we are in agreement with the submission of learned Additional Advocate General No. III that the judgment of the Division Bench in the case of Ram Krishna Dubey was per in curium of the aforesaid judgments. If those judgments had been cited by counsel for the parties, the distinction would have been clear between an issue which involves validity of very entry into civil service and other issues which may attract Article 311(2) of the Constitution when the status of an employee as civil servant is not in dispute.

12. In view of the aforesaid discussions and findings and particularly in view of the law laid down by the Apex Court in the case of Ashwani Kumar (supra) which has been discussed and approved by recent Constitution Bench judgment in the case of Umadevi (supra), we find no merit in these appeals and thus, the same have to be dismissed.

13. However, we have heard learned Additional Advocate General No. III at length in respect of his submission that in the light of the judgment in the case of Umadevi (supra), service of a person who has entered through an illegal appointment is void and can always be treated as such, with the care and caution that it deserves. There is no dispute that the Constitution Bench, in the case of Umadevi (supra,) has discussed all the relevant precedents, specially judgments of the Supreme Court and has drawn a clear distinction between the appointments which can be treated irregular and, therefore, may be regularized and those appointments which are per se illegal and, therefore, cannot be regularized. For regularizing the services of irregularly appointed employees, who had continued in service beyond ten years without the aid of any order of the court, the Apex Court itself issued directions, as a one time measure, in paragraph 43 of the judgment.

14. The issue as to what will be the effect of the judgment and how it may be used by the State and its authorities, also appears to have been addressed by the Apex Court in the same very paragraph. After issuing directions for one time regularization of specified class of irregularly appointed employees by all the authorities, the Apex Court has issued further clarification which runs thus:-

“………… We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.”

15. In our view, the aforesaid clarification is sufficient indication of the Supreme Court that on the basis of the said judgment, any regularization already made which was not under judicial consideration at any stage, required no reopening on account of that judgment. The Apex Court appears to be fully alive to the situation that in the past there had been bypassing of the constitutional requirements and employees had been regularized or made permanent although they were not duly appointed as per constitutional scheme. The Apex Court, therefore, clarified that there should be no further by-passing of the constitutional requirements. (Underlining is ours for the purpose of emphasis). Learned Additional Advocate General No. III faintly suggested that since under this judgment the Constitution Bench of the Supreme Court had prohibited regularization in case of illegal appointments, the reopening of illegal appointments even on the basis of that judgment could be always done by the State even if such matters were not sub judice or had been not reopened prior to this judgment. For this purpose, he submitted that since illegal appointments would be void, they would always remain to be of no consequence. We do not agree with the meaning of the term “void” given by the learned A.A.G in the present context. The word “void” has been considered by the Apex Court in many judgments under different contexts. There is a catena of judgments to the effect that even illegal or void orders are capable of legal consequences unless the required declaration is sought by the aggrieved party that an order is illegal or void and hence inoperative and not binding. In the case of State of Punjab v. Gurudev Singh, [(1991) 4 Supreme Court Cases 1], this issue was discussed and determined as indicated above, in the light of several other judgments and reliance was also placed upon a relevant passage from administrative law by Professor Wade. No doubt, in those cases the necessary declaration could come only from a court of competent jurisdiction because the orders were under statutory provisions but the principle is clear that even an illegal and void order continues to have legal consequences till it is lawfully declared to be illegal or void. In this context, the aforesaid “clarification” by the Constitution Bench becomes relevant and useful as a guide otherwise the judgment in the case of Umadevi (supra) could be used as a basis for reopening of any appointments made at any point of time, may be even in relation to retired employees. The present cases, however, were clearly alive and subjudice from before. The said clarification does not help the appellants.

16. In view of aforesaid discussions and findings, all these appeals are found to be without merit and are accordingly, dismissed. There shall be no order as to costs.