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  • Birendra Prasad Verma, J.
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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

The appellant was appointed as a sweeper by the Civil Surgeon-cum-Chief Medical Officer, Vaishali, on 20 April 1987, posted to Primary Health Centre, Sahdei Bujurg, in the pay scale Rs. 350-425. The appointment was made pursuant to an application dated 25 November 1982. At a later point, several such appointments in the Health Department were placed under scrutiny by the State Government.

In February 2003 the appellant was called to produce documents. Following document scrutiny, the State terminated the appellant's service by order dated 28 February 2003 on the ground that the appointment had been made illegally. The appellant challenged that termination under Article 226 in CWJC No. 3226 of 2003; the Single Judge (Narayan Roy, J.) by judgment dated 8 September 2003 allowed the writ petition(s) and directed reinstatement.

The State Government appealed to the Division Bench (LPA No. 946 of 2003 and others). By a common judgment dated 26 June 2006 the Division Bench relied on the Hon'ble Supreme Court's decision in Secretary, State of Karnataka v. Uma Devi, and remanded the matters for reconsideration by the Health Department to determine which affected employees, if any, could be regularized in terms of paragraph 44 of Uma Devi.

The State constituted a five-member Committee to examine all cases. That Committee classified appointments as forged, illegal, or irregular; it reported the appellant's appointment as illegal because it was not made on a sanctioned post. The report was challenged in CWJC No. 2373 of 2008. The Single Judge (6 October 2009) quashed the Committee's report and the terminations. The State again appealed.

By judgment dated 11 February 2010 a Division Bench (Dipak Misra, CJ & Mihir Kumar Jha, J.) allowed the State's appeals, set aside the Single Judge's directions, and appointed a fresh Committee (including Mr. Justice Uday Sinha (Retd.)) with detailed directions to adjudicate the legality of individual appointments. That Committee reported on 23 June 2010 that the appellant's appointment was illegal for lack of a sanctioned post and for non-compliance with recruitment rules. The Single Judge dismissed the appellant's writ petition in CWJC No. 13550 of 2010 (order dated 11 April 2011), and the appellant preferred the present appeal under Clause 10 of the Letters Patent.

Legal Issues Presented

  1. Whether the appellant, by virtue of her appointment as a sweeper on 20 April 1987, has a right to continue in service (i.e., entitlement to reinstatement or regularization).
  2. Whether the termination of her service by order dated 28 February 2003, on the ground that her appointment was illegal, is sustainable.

Arguments of the Parties

Appellant's Arguments (Mr. Banwari Sharma)

  • Relied strongly on the judgment of the Hon'ble Supreme Court in Secretary, State of Karnataka v. Uma Devi, particularly paragraph 44, which concerns regularization of certain appointments where employees have served continuously for ten years or more.
  • Contended that the appellant should benefit from the observations in Uma Devi (and related authority M.L. Kesari) on the basis of continuous service.
  • Noted that the Division Bench judgment of 2010 was the subject matter of a Special Leave Petition (Civil) No. 17688 of 2010 before the Hon'ble Supreme Court, which issued a notice in that petition.

Respondent's Arguments (State of Bihar — Mr. Kundan Bahadur Singh)

  • The State contested the appeal and relied on the findings of the Committees (the State-appointed five-member Committee and the Committee appointed by the Division Bench) that the appellant's appointment was illegal (not on a sanctioned post and not in compliance with recruitment rules).
  • Maintained classification of appointments (forged, illegal, irregular) and the conclusion that illegal appointments are not entitled to relief under the principles in Uma Devi.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Secretary, State of Karnataka v. Uma Devi (Constitution Bench) [referred to in the opinion] Principle that certain irregular appointments of duly qualified persons to duly sanctioned vacant posts who have continued in service for ten years or more may be considered for regularization (paragraph 44); distinguishes between "irregular" and "illegal" appointments. The court examined whether Uma Devi's observations applied to the appellant and concluded they did not because the appellant's appointment was held to be illegal (not merely irregular) and therefore excluded from sympathetic consideration under Uma Devi.
State of Karnataka v. M.L. Kesari [(2010) 9 SCC 247] Applied/followed the principles in Uma Devi regarding entitlement to regularization in appropriate cases. The opinion cites M.L. Kesari as a case where Uma Devi's principles were applied; the court noted that another Division Bench had held employees entitled to regularization pursuant to Uma Devi and M.L. Kesari, but in the appellant's case the Committees found Uma Devi inapplicable because the appointment was illegal.
Judgment of the Single Judge (Narayan Roy, J.) — 8 September 2003 [2003 (4) PLJR 282] Directed reinstatement of affected writ petitioners whose appointments had been challenged. The Division Bench later reviewed and remanded matters for reconsideration in light of Uma Devi; the 2003 single-judge direction was set aside in subsequent appellate proceedings.
Division Bench judgment — 26 June 2006 [2006 (3) PLJR 386] Relied upon Uma Devi and remanded matters to Health Department to reconsider cases to determine who might be fit for regularization under Uma Devi (limited remand). The court records that this Division Bench remand led to constitution of the State Committee and the subsequent classification of appointments (forged/illegal/irregular).
Single Judge judgment — 6 October 2009 [2009 (4) PLJR 690] Quashed the State Committee's report and the terminations; held the Committee's report unsustainable and allowed writ petitions. The Division Bench thereafter entertained appeals against this Single Judge judgment; its orders were reviewed by later Division Bench decisions referenced in the opinion.
Division Bench judgment — 11 February 2010 [2010 (2) PLJR 397] Allowed State's appeals, set aside the Single Judge's directions, and appointed a Committee (including retired Justice Uday Sinha) to adjudicate the legality of appointments with detailed directions. The Committee appointed pursuant to this judgment examined the appellant's case and reported her appointment illegal; the Single Judge dismissed the subsequent writ petition, leading to the present appeal.

Court's Reasoning and Analysis

The court's analysis proceeded in the following steps, strictly as reflected in the opinion:

  1. Assessment of Records and Committee Findings: The court noted that large-scale illegal and irregular appointments had occurred in the Health Department. The State constituted a five-member Committee which examined each appointment against specified criteria (sanctioned and vacant post; competent appointing authority; eligibility on date of appointment; ten years' continuous service; existing court orders). That Committee classified appointments and found the appellant's appointment to be illegal because it was not on a sanctioned post.
  2. Independent Re-Examination by Court-Appointed Committee: A Committee appointed pursuant to the Division Bench's 11 February 2010 judgment also examined the appellant's appointment and independently concluded it was illegal — made without following recruitment process, not selected by a properly constituted Selection Committee, and in total disregard of rules.
  3. Opportunity to Be Heard: The court observed that before both Committees the appellant had been given opportunity to defend the legality of her appointment; there was no material on record alleging procedural infirmity in the Committees' examination or findings.
  4. Application of Uma Devi and Related Authority: The court analysed the applicability of Uma Devi's paragraph 44, which recommends regularization for certain irregular appointments where employees served continuously for ten years or more. The court emphasized Uma Devi draws a distinction between “irregular” and “illegal” appointments and expressly excludes illegal appointments from sympathetic consideration. Both Committees had considered Uma Devi and concluded it did not apply to the appellant.
  5. Evaluation of Evidence Specific to the Appellant: The court noted the appointment letter itself indicated the order was "made for the asking" and found no material to rebut the Committees' conclusion that the appointment was illegal and unsustainable.
  6. Conclusion: Given that the appellant's appointment had been consistently found to be illegal by both Committees, and Uma Devi does not extend relief to illegal appointments, the court found no basis to disturb the Committees' findings and dismissed the appeal.

Holding and Implications

Holding: The court's final decision was to dismiss the appeal. The opinion records the dispositive outcome as:

DISMISSED IN LIMINE

Implications:

  • Direct effect: The appeal by the writ petitioner was dismissed and the earlier findings — that the appellant's appointment was illegal and not susceptible to regularization under Uma Devi — remain operative as reflected in the opinion.
  • Broader precedent: The opinion applies the established distinction from Uma Devi between "irregular" and "illegal" appointments and confirms that illegal appointments are excluded from the sympathetic remedy of regularization. The opinion itself does not purport to set a new legal precedent beyond applying those existing principles; no broader novel legal rule was announced in this opinion.
Show full summary ...

    Sunaina Devi v. State Of Bihar

    R.M Doshit, C.J:— This appeal under Clause 10 of the Letters Patent is preferred by the writ petitioner against the order dated 11th April, 2011 made by the learned Single Judge in above CWJC No. 13550 of 2010. The matter at issue is whether the appellant, by virtue of her appointment as a sweeper made by the Civil Surgeon-cum-Chief Medical Officer, Vaishali on 20th April, 1987, has a right to continue in service and whether the termination of her service by order dated 28th February, 2003 on account of her appointment being illegal is sustainable or not.

    2. Under order dated 20th February, 1987 made by the Civil Surgeon-cum-Chief Medical Officer, Vaishali, the petitioner was appointed as a sweeper in the pay scale of Rs. 350-425 with admissible allowances and was posted at Primary Health Centre, Sahdei Bujurg. The said appointment was made pursuant to the application made by the appellant on 25th November, 1982.

    3. It appears that at the relevant time several such appointments were made by the Civil Surgeon. All such appointments were under scrutiny by the State Government. To facilitate such enquiry under order dated 8th February, 2003, the petitioner was called upon to produce various documents, such as appointment letter, interview call letter, credentials, transfer and confirmation order, etc.

    4. Pursuant to the scrutiny of the documents, the appointment of the appellant was found to be illegally made without following the due process. Consequently by order dated 28th February, 2003 the petitioner's service was terminated. The said order was challenged before this Court under Article 226 of the Constitution in CWJC No. 3226 of 2003.

    5. The learned Single Judge of this Court (Coram: Narayan Roy, J.) by common judgment dated 8th September, 2003 [2003 (4) PLJR 282] allowed the said and the other writ petitions and directed the State Government to reinstate the writ petitioners in service. The said judgment was challenged by the State Government before the Division Bench of this Court in LPA No. 946 of 2003 and other appeals. The said appeals were decided by common judgment dated 26th June, 2006 [2006 (3) PLJR 386]. The Bench relied upon the judgment of the Hon'ble Supreme Court in the matter of Secretary, State of Karnataka v. Uma Devi [2006 (2) PLJR (SC) 363] and with consensus of the learned Advocates disposed of the appeals “with a direction to the authorities, of the Health Department, Government of Bihar to reconsider the cases of all the affected employees with a view to find out on the basis of relevant facts and law as settled by the Constitution Bench in the case of Secretary, State of Kamataka v. Uma Devi (supra) as to which of such affected employees are fit for regularization in terms of the judgment, particularly in terms of paragraph 44 of the judgment”. In other words the Bench confirmed the finding of illegal appointment. Remand was for limited purpose to ascertain whether any of the said employees could be given the benefit of regularization in service as observed by the Hon'ble Supreme Court in case of Uma Devi (supra). The said judgment was not carried further and attained finality.

    6. In view of the aforesaid direction, the matters were reconsidered by the State Government by appointing a Committee of five persons especially for that purpose. While considering the cases, the said Committee examined each case to answer (i) whether the appointment was made on a sanctioned and vacant post; (ii) whether the appointment was made by the competent authority; (iii) whether on the date of appointment, the concerned employee was eligible for such appointment; (iv) whether such employee had served continuously for ten years; and (v) whether there was any order made by any court in respect of such employees.

    7. Having examined each such appointment, the committee found that 358 appointments were made on the basis of forged documents; 228 appointments were illegal and 91 appointments were irregular. With respect to the present appellant, the Committee opined that her appointment was illegal as her appointment was not made on a sanctioned post (Item No. 163 of the Annexure to the Report of the said Committee). The said report was challenged by several employee's of the Health Department whose service was held by the Committee to be illegal.

    8. The appellant feeling aggrieved by the said report, filed CWJC No. 2373 of 2008. The said petition and the other petitions filed to challenge the finding of the said Committee were decided by the learned Single Judge of this Court by a common judgment dated 6th October, 2009 [2009 (4) PLJR 690]. The learned Single judge was pleased to allow the writ petitions; to quash the enquiry report and to quash the order of termination made against each petitioner. The learned Single Judge was pleased to hold that the report of the Committee constituted by the State Government was not sustainable. The order of termination of service could not have been made on the finding recorded by the said Committee. The dispute raised by the writ petitioners was in respect of the genuineness of their appoinment. They did not admit that their service was irregular nor they were seeking regularization in service. The parameters provided in the case of Uma Devi (supra) did not have application. The said judgment was challenged by the State Government before the Division Bench in LPA No. 1624 of 2009 and the analogous appeals.

    (Order Dt. 1.7.2011)

    9. The Bench (Coram: Dipak Misra, CJ & Mihir Kumar Jha, J.) by the judgment and order dated 11th February, 2010 [2010 (2) PLJR 397] allowed the appeals preferred by the State Government. The Bench set aside the directions issued by the learned Single Judge; appointed a Committee comprising Mr. Justice Uday Sinha (Retd.) to adjudicate upon the legality of the appointment and continuance of each writ petitioner. The Bench also issued de-tailed directions for functioning of the said Committee;

    10. The aforesaid Committee has examined each case individually on its own merits; In respect of the appellant the said Committee has made report on 23rd June, 2010. The said Committee has re corded a finding that the appointment of the appellant was illegal as the same was made without following the due recruitment process and that the selection was not made by properly constituted Selection Committee. The said Committee found that the appointment of the appellant had been made in total disregard of the rules and that it was difficult to sustain her appointment. As to the applicability of the above referred judgment in the matter of Uma Devi (supra), the said Committee held that the appellant did not gain any advantage from the said judgment. The aforesaid report of the Committee was the subject matter of challenge by the appellant in above CWJC No. 13550/2010. In view of the aforesaid finding, the learned Single Judge has dismissed the writ petition. Therefore, the present appeal.

    11. Learned Advocate Mr. Banwari Sharma has appeared for the appellant. He has strongly relied upon the judgment in the matter of Uma Devi (supra), particularly paragraph 44 thereof. He has submitted that the judgment of the Division Bench [2010 (2) PLJR 397] is the subject matter of challenge before the Hon'ble Supreme Court. The Hon'ble Supreme Court is seized of the matter. It appears that one of the aggrieved employees has preferred appeal before the Hon'ble Supreme Court. In a petition for Special Leave to Appeal (Civil) No. 17688 of 2010, the Hon'ble Supreme Court has made order “Issue notice to show cause why the matter should not be remanded for consideration of the LPA on merits”.

    12. Let it be noted that the present appellant did not challenge the order in appeal and she did submit to the authority of the Committee appointee by the Bench. In our opinion, it is not open to the appellant to challenge the constitution of the Committee by the Bench.

    13. Reliance is placed on a common judgment and order dated 29th March, 2011 passed by this Court (Coram: Justice T. Meena Kumari & Justice Dr. Ravi Ranjan) in LPA No. 230/2011 and others preferred by the State of Bihar against the judgment of the learned Single Judge [2009 (4) PLJR 690]. By the said judgment the Bench of this Court has dismissed the appeals preferred by the State of Bihar. It has been held that the concerned employees were entitled to the benefit of regularization as laid down in the case of Uma Devi (supra) and in the case of State of Karnataka v. M.L Kesari [(2010) 9 SCC 247].

    14. Reliance is also placed upon unreported judgment dated 6th April, 2010 of the Division Bench (Coram: Dipak Misra, CJ & Mihir Kumar Jha, J.) passed in LPA No. 1492 of 2009 and other appeals. In the said matter, the question was of termination of the service of teachers in the project schools who had continued for a period of over 15 years. The Bench directed to re-examine the claim for recognition/absorption made by the writ petitioners keeping in view the detailed directions issued therein. It was further directed “Such of the respondent writ petitioner, whose appointment was against unsanctioned post and/or who did not possess the requisite qualification and/or whose appointment was neither made by the concerned Regional Deputy Director of Education nor by the District Education Officer, would not be entitled for reinstatement in service much less for payment of any back wages as directed by the learned Single Judge.”

    15. Learned Standing Counsel Mr. Kundan Bahadur Singh has appeared for the respondent State of Bihar. He has contested the appeal.

    16. We are unable to agree with the learned Advocate Mr. Sharma. Let it be noted that it is apparent that there was a large scale illegal/irregular appointments made in the Health Department of the State of Bihar. The State Government constituted a five-Persons Committee especially to record finding in respect of each such appointment. The said Committee having examined each case keeping in view the observations made by the Hon'ble Supreme Court in the matter of Uma Devi (supra) classified the appointments as illegal or irregular appointments. Amongst the illegal appointments, a further classification was made-the appointments made ate hors the rules and the appointments made on the basis of forged documents. In respect of the present appellant, the said Committee found that her appointment was not made on a sanctioned post. Independent of the said report or the said finding, the Committee constituted by this Court has also opined that the appointment of the appellant was totally illegal. The said Committee also examined the applicability of the observations made by the Hon'ble Supreme Court in the matter of Uma Devi (supra). It cannot be gainsaid that before both the Committees the appellant had been given opportunity to defend her appointment as being legal and proper. There is no material on record or not even an allegation that the impugned finding re corded by the Committee is erroneous. On the contrary the appointment letter it self is indicative that the said order was made for the asking. The only argument advanced is on the basis of continuous service and the observations made by the Hon'ble Supreme Court in the matter of Uma Devi (supra) followed in the case of M.L Kesari (supra).

    17. As recorded hereinabove, both the aforesaid Committees did examine the applicability of the observations made by the Hon'ble Supreme Court in the matter of Uma Devi (supra) and held that the same shall not apply to the case of the appellant.

    18. We have once again examined the applicability of the said observations in the case of the appellant. In the matter of Uma Devi (supra), the Court recommended regularization of the services of the employees appointed irregularly, who had served continuously for more than ten years. The emphasis was on “irregular appointment” and on “illegal appointment”. The Court observed, “There may be cases where irregular appointments (not illegal appointments) and of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals.” Thus, in our view, the illegal appointments are totally excluded from sympathetic consideration. The appellant's appointment having been found to be totally illegal, she cannot be given the benefit of the above observation. No other contention is raised before us.

    19. The appeal is dismissed in limine.

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    Sunaina Devi v. State Of Bihar
    (Jul 1, 2011)