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Udai Kumar Sharma v. Registrar, Co-Operative Societies, Bihar And Others
Factual and Procedural Background
The petitioner sought a writ directing respondents to allow him to continue working as a clerk in the office of the Assistant Registrar, Co-operative Societies, Danapur Circle, Danapur, and to regularise his appointment and pay salary. The petitioner alleged an initial temporary appointment on 19 December 1977, subsequent retrenchment, and a later appointment by the Assistant Registrar on 23 November 1978, with joining on 24 November 1978. The petitioner alleged he received no salary from 24 November 1978 and pursued internal representations, reminders and ministerial intervention culminating in directions from the Minister Incharge (orders dated 3 July 1981 and 21 April 1982) that the petitioner be allowed to continue and be paid salary retrospectively. Despite these directions and a committee report supporting the petitioner, the matter allegedly remained unresolved.
Procedurally, the petitioner filed applications in this Court under Articles 226 and 227 (registered as C.W.J.C No. 3971 of 1985) but was permitted to withdraw to move the Minister again. He also filed a petition before the Bihar State Administrative Tribunal (Service Case No. 77 of 1986) which was allowed to be withdrawn on similar grounds. The State filed a counter-affidavit denying the petitioner was ever appointed to a Government post and alleging fabrication of documents.
Legal Issues Presented
- Whether the petitioner was validly appointed to a Government post and thereby entitled to continuation in service and retrospective salary.
- Whether the petitioner can invoke writ jurisdiction (mandamus) under Articles 226 and 227 of the Constitution to enforce alleged appointment or payment of salary.
- Whether employment with a Co-operative Society (a society registered under the Co-operative Societies Act) can be treated as employment by the State for the purpose of invoking constitutional protections (Article 12) and related service rights.
- Whether any alleged appointment, if effected without required procedure or by an officer lacking jurisdiction, is a nullity and therefore incapable of conferring enforceable legal rights.
- Whether any policy of preference for retrenched employees (as asserted by the petitioner) can validate an appointment that did not comply with constitutional requirements under Articles 14 and 16.
Arguments of the Parties
Petitioner's Arguments
- The petitioner was validly appointed as an Assistant (clerk) on 23 November 1978 and joined service on 24 November 1978, and therefore is entitled to continuation and retrospective salary because no termination order was ever passed.
- The appointment was claimed to be on the basis of a government circular providing preference to retrenched employees of the Co-operative Department; in view of this policy and the documentary record (Annexures-10 and 11), the petitioner should be regularised and paid salary.
Respondents' / State's Arguments
- The State denied the petitioner was ever appointed to any Government post; hence the question of being a retrenched employee or of joining Government service does not arise.
- The counter-affidavit alleged that certain documents were manufactured by the petitioner's father (a Head Clerk) to support the petitioner's claim; a later letter dated 7 January 1981 (referred to in the counter) described the petitioner's claim as fake.
- The Government pleader submitted the petitioner had earlier been appointed in a Society registered under the Co-operative Societies Act (Sahkarita Vikas Ewam Ekh Kray Vikray Sangh, Bihta), which is not a department of the State, and therefore the petitioner was never a government servant.
- Annexure-A to the counter-affidavit (letter dated 7 January 1981) answered specific queries: the petitioner was not appointed on a vacant post, was only allowed to work due to dearth of employees, there was no formal appointment letter (only a letter of 23 November 1978 that could not be termed an appointment letter), the Assistant Registrar lacked authority to make appointments without the Joint Registrar's approval, and the petitioner had not worked even for a single day.
- Counsel for respondents also pointed out the petitioner and his counsel could not show compliance with prescribed state appointment procedures (advertisement, employment exchange, consideration of other candidates) nor produce the circular allegedly conferring preference.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ramana Dayaras v. The International Airport Authority of India ((1979) 3 SCC 489 : AIR 1979 SC 1628) | Clarification of "instrumentality or agency of the State" — such expression means that the body's action is State action and does not necessarily create a principal-agent relationship. | The Court relied on this principle in discussing whether the Co-operative Society or its actions could be treated as State action under Article 12; the Court used the decision to note that even if a society were an instrumentality, foundational facts for appointment were not established in the present case. |
| Rita Mishra v. Director, Primary Education, Bihar (1987 PLJR 1090 (F.B)) | Authority for the proposition that a person whose appointment is wholly illegal and without jurisdiction cannot claim even salary. | The Court cited this decision to support the conclusion that where an appointment is a nullity (for want of jurisdiction), the person cannot derive enforceable rights or claim salary; the Court applied this principle in dismissing the petitioner's claim for mandamus or salary. |
Court's Reasoning and Analysis
The Court undertook a stepwise analysis grounded in the facts and authorities before it:
- Existence of a disputed question of fact: The Court observed a serious dispute on whether the petitioner was ever appointed. It held that such a disputed factual question cannot be finally decided in proceedings under Articles 226 and 227 (writ jurisdiction) and therefore required more than what a writ petition can resolve.
- Insufficiency of documentary proof and failure to prove procedural compliance: The petitioner failed to produce the circular said to provide preference to retrenched employees and could not show compliance with state appointment procedures (advertisement, employment exchange references, consideration of other candidates). The Court emphasized that the petitioner’s counsel could not point to any adherence to the formal appointment procedures required by the State of Bihar.
- Nature of prior employment and Article 12 analysis: The Court noted that the petitioner’s earlier employment was with a Co-operative Society registered under the Co-operative Societies Act, which is a juristic person and not necessarily a State or a department within the meaning of Article 12. Even if such a society were treated as an instrumentality of the State, the Ramana Dayaras principle shows that merely being an instrumentality does not automatically establish a governmental appointment; the foundational facts for appointment remained wanting in the present case.
- Constitutional requirements for public employment: The Court reiterated that appointment to public employment must conform to Articles 14 and 16 — every citizen must have equal opportunity to be considered for appointment and appointments must follow prescribed procedures. Any appointment not complying with these constitutional mandates is illegal.
- Jurisdictional defect and nullity of appointment: The Court found that the Assistant Registrar, who purportedly allowed the petitioner to work, had no authority to offer employment without the requisite approvals. An appointment effected by an officer without jurisdiction is a nullity and cannot confer enforceable legal rights.
- Remedies and entitlement: Because the alleged appointment (even if it occurred) was either not proved or was effected without jurisdiction and without satisfying constitutional and statutory requirements, the petitioner did not derive any legal right that a court could enforce by issuing a writ of mandamus. The Court invoked the principle (as in Rita Mishra) that a person cannot claim salary or other rights where the appointment is a nullity.
- Conclusion: Considering all aspects, including the disputed facts, lack of proof of proper appointment procedure and the jurisdictional defects, the Court concluded the petitioner had no enforceable right and the writ petition could not succeed.
Holding and Implications
Holding: The Court's final decision was to dismiss the writ application. The core ruling is emphasized as follows:
DISMISSED
Implications for the parties:
- The petitioner was not entitled to a writ of mandamus directing continuation in service or payment of retrospective salary because (a) there was a disputed factual foundation as to whether any valid appointment took place, (b) the petitioner failed to prove compliance with required appointment procedures, and (c) any purported appointment by an officer without jurisdiction was a nullity incapable of conferring enforceable rights.
- The Court applied established authorities to conclude that a person cannot claim salary or other benefits where the appointment is wholly illegal or without jurisdiction.
- There will be no order as to costs in the circumstances of the case.
Broader precedent: The opinion did not purport to lay down new law; it applied existing principles (including those in Ramana Dayaras and Rita Mishra) to the facts of this case. No new constitutional principle was announced.
S.B Sinha, J.:— In this writ petition, the petitioner has sought for issuance of an appropriate writ directing the respondents to allow the petitioner to continue to work as before as a clerk in the office of the Assistant Registrar, Co-operative Societies, Danapur Circle, Danapur.
2. The facts of the case lie in a very narrow compass. The petitioner was allegedly appointed as an Assistant on the 19th December, 1977, on a temporary basis. He was subsequently retrenched. Thereafter, allegedly, vacancies for the posts of Assistant occurred and the petitioner allegedly held all the necessary qualifications and he applied therefor. The said application was forwarded by the respondent no. 4 as contained in Annexure-1 to the writ application. The petitioner was allegedly thereafter appointed to work as an Assistant by the Assistant Registrar, Co-operative Societies on the 23rd November, 1978 Page: 953who also sought for approval from the higher authorities in respect of appointment of the petitioner. A copy of the order dated the 23rd November, 1987, which allegedly evidences appointment of the petitioner is contained in Annexure-2 to the writ application. The petition joined the said post on the 24th November, 1978; the joining report being contained in Annexure-3 to the writ application. According to the petitioner, the Joint Registrar, however, did not take any action with regard to the recommendation of the Assistant Registrar, Danapur Circle, as contained in his letter dated the 23rd November, 1978 (Annexure-1). He wrote another letter to the Joint Registrar on the 3rd January, 1979. A copy of the said letter is marked as Annexure-5 to the writ petition. A reminder was also sent on the 20th March, 1979, by a letter as contained in Annexure-6 to the writ application. According to the petitioner, on and from 24th November, 1978, he had not been paid any salary whatsoever. In this situation, the petitioner's wife submitted a representation to the Chief Minister on the 20th August, 1980, which is contained in Annexure-7 to the writ application. Thereafter, the Joint Registrar, Co-operative Societies, allegedly asked for a report about the regularisation of the appointment of the petitioner. The petitioner has alleged that despite the direction by the Chief Minister, the officers of the Department were not taking any action and in such a situation the Minister Incharge of the Department upon the representation made to the Chief Minister by the petitioner's wife, as mentioned hereinbefore, directed that the petitioner should be allowed to continue to work by an order dated the 3rd July 1981 and as contained in Annexure-9 to the writ application. It was further directed therein that the petitioner should be paid his salary from the 24th November, 1978, till date. According to the petitioner, even the said order was not complied with and thereafter a Committee consisting of the Registrar, Co-operative Societies, the Joint Registrar and the Special Secretary of the Co-operative Department, was constituted which Committee examined the entire matter and submitted its report to the then Minister Incharge. In the said report it was inter alia, pointed out that the petitioner marked his attendance and, as such, the subsequent deletion of his attendance from the attendance register was improper. In the said report it was also pointed out that the Joint Registrar of the Patna Division was guilty of not disposing of the said matter and keeping the same unnecessarily pending. Thereafter, the Minister Incharge directed that the petitioner's appointment with retrospective effect be considered. A copy of the report along with the order of the Minister is contained in Annexure-10 to the writ application.
3. As the said matter still remained pending, the Minister Incharge again directed by an order dated the 21st April, 1982, that his earlier order be complied with. In the said order, the Minister Incharge also expressed displeasure in regard to the disobedience of the order. The petitioner thereafter moved this Court by filing an application under Articles 226 and 227 of the Constitution which was registered as C.W.J.C No. 3971 of 1985 but a Bench of this Court permitted the petitioner to withdraw this application to move the Minister concerned in that regard.
4. The petitioner thereafter made a representation to the Minister Incharge in September, 1985, which was not disposed of. Thereafter, the petitioner filed a petition before the Bihar State Administrative Tribunal, which Page: 954was registered as Service Case No. 77 of 1986. By an order dated the 1st July, 1986, the Tribunal permitted the petitioner to withdraw the said application allegedly on the ground that the representation filed by the petitioner before the Minister Incharge having not been disposed of he should again move the Minister concerned. According to the petitioner, a report was called for from Shri K.C Mishra, Joint Registrar, and the petitioner met him personally on several occasions but despite the same he did not send any report, although several reminders had been sent to the said authority by the concerned officers.
5. In this case, a counter-affidavit has beed filed on behalf of the State wherein, inter-alia, it his been asserted as follows:—
“4. That with regard to the statements made in paragraphs nos. 2 and 3 of the writ petition are denied. The petitioner was never appointed to any Government post. Since the writ petitioner was never appointed to a Government post, the question of his having been a retrenched employee does not arise at all.”
“5. That, with regard to the statements made in paragraph no. 4 of the writ petition, it is stated that from Annexure-I to the writ petition it is quite clear that he was not a retrenched emlpoyee nor he was appointed to any post under the Government. Since the petitioner was not appointed to Government Service the question of his joining in any capacity as a Government servant does not arise. So far Annexure-3 is concerned it is submitted that the petitioner's father was Head Clerk in the office of the Assistant Registrar, Co-operative Societies, Danapur Circle, and he manufactured certain documents to suit the claim of his son. Subsequent letter no. 26 dated 7.1.1981 itself speaks about the fake claim of the petitioner. From this letter, it would appear that the writ petitioner was never appointed as clerk in Danapur Circle nor he joined any Government post.”
6. Mr. L.K Bajla, learned counsel appearing on behalf of the petitioner submitted that the petitioner having been validly appointed he was entitled to his salary as no order of termination of his services has yet been passed. According to Mr. Bajla, the ptitioner was appointed allegedly on the basis of a circular of the Government which provided for preference to the retrenched employee of the Co-operative Department. Mr. Bajla further contended that, in view of the aforementioned policy decision and further in view of the fact and as recorded in Annexures-10 and 11 to the effect that the petitioner joined the service on the 24 November, 1978 and had been working since then, there was no reason whatsoever as to why the petitioner's services should not be regularised and the respondents be directed to pay his salary.
7. Mr. Bajla, when questioned as to whether the petitioner was appointed in accordance with the procedures for appointment laid down by the State of Bihar, i.e, advertisement of the vacancies and calling for the names from the Employment Exchange and from consider ation of the cases all other candidates along with the petitioner, could not point out that any such procedure was followed. Mr. Bajla when asked to produce the circular on the basis whereof the petitioner was entitled to preference even could not produce the same nor such a circular has been annexed to the writ petition.
8. Mr. Kamlapati Singh, on the other hand, drew my attention to the fact that earlier the petitioner in line as of Annexure-1 itself was appointed in the Sahkarita Vikas Ewam Ekh Kray Vikray Sangh, Bihta, which is a Society registered under the Co-operative Societies Act and not a department of the State of Bihar. According to the learned Government Page: 955Pleader, the petitioner was, thus, never appointed as a Government servant. In this connection, my attention was also drawn to the letter dated the 7th January, 1981, as contained in Annexure-A to the counter-affidavit. The said letter contains answers to certain questions put to the Assistant Registrar, Co-operative Societies by the Joint Registrar thereof. In answer to the question as to whether the petitioner was appointed on a vacant post or not, it was pointed out that the petitioner was not appointed on a vacant post but he was allowed to work in view of dearth of employees in the department. In answer to the question as to whether the petitioner was given any appointment letter, it was stated that there was only a letter dated the 23rd November, 1978, which cannot be termed as an appointment letter. In answer to the question as to under what circumstance the petitioner was appointed it was pointed out that he was not appointed by the addressee of the letter. In answer to the question as to whether in the appointment of the petitioner the requisite formalities were complied with or not, it was pointed out that the said question did not arise in view of the fact that the petitioner was not appointed by the addressee of the letter. In answer to the question as to whether the Assistant Registrar, Co-operative Societies, had any authority to appoint any body without the approval of the Joint Registrar, the answer was rendered in the negative. In answer to the question as to what work was done by the petitioner, it was staled that the petitioner had not been appointed but the order for his joining evidently was issued, although the petitioner's was not produced before him, the petitioner whose father was Head Assistant of the office took the joining report from him without obtaining his approval and allowed him to mark the attendance Register. It was further stated in answer to the question as to whether the petitioner had worked during that period, it was stated that the petitioner did not work even for a single day.
9. Evidently, thus, there appears to be a serious dispute with regard to the fact as to whether the petitioner was at all appointed or not. Such a disputed question of fact cannot be decided in an application under. Articles 226 and 227 of the Constitution of India.
10. Further, the basis for petitioner's appointment appears to be that he was a retrenched employee of the Co-operative Department. As noticed hereinbefore, such a circular has not been produced by the petitioner. Assuming that there exists such a circular, it is evident that the petitioner had earlier been working in a Co-oprative Society. A Co-operative Society registered under the Co-operative Societies Act is a juristic person. Such a society is not a department of the State nor is a State within the meaning of Article 12 of the Constitution. Even if the Society was a State within the meaning of. Article 12 of the Constitution, it was merely an instrumentality or agency of the State.
11. In Ramana Dayaras v. The International Airport Authority of India ((1979) 3 SCC 489 : AIR 1979 SC 1628), it has been pointed out that by the expression instrumentality or agency of the State, it does not mean that there exists a relationship of Principal and Agent by and between the State and such body but it merely means that its action is State action. Thus, it is clear that even the foundational facts for appointment of the petitioner were not existing.
12. Even, according to the submission of Mr. Bajla the petitioner is entitled to preference Page: 956being a retrenched employee which would mean that preference shall be given to such retrenched employee vis-a-vis other general candidate. From the facts of the case as noticed hereinbefore, it is evident that even the requisite formalities for appointment of a Government servant was not complied with. In terms of Article 16 of the Constitution every citizen of India, subject to the exception envisaged therein, is entitled to be considered for appointment. It is now well known that the State while offering appointment must give opportunity to all citizens who are qualified therefor. Any violation of such a rule would attract Article 16 of the Constitiution. In certain circumstances, in terms of the policy decision of the State or by invoking the doctrine of distributive justice the members of the weaker section may be given preference but the same also must conform to the constitutional mandate contained in Articles 14 and 16 of the Constitution.
13. It is now well known that public employment is a property and thus, all the citizens must be given equal opportunity to be considered for appointment once he is eligible therefor. Any appointment which does not conform to the requirements of Articles 14 or 16 of the Constitution must thus be held to be wholly illegal.
14. Thus, assuming that the petitioner was also allowed to work by the Assistant Registrar, admittedly, the said officer having no jurisdiction whatsoever to offer any employment to the petitioner, the same is a nullity. There cannot be any doubt that if the petitioner's so-called appointment was wholly illegal and without jurisdication, the same being a nullity, the petitioner did not derive any legal right therefrom. Thus, the petitioner having not derived right to be enforced in a court of law, evidently no writ of mandamus can be issued by this Court in his favour. In Rita Mishra v. Director, Primary Education, Bihar (1987 PLJR 1090 (F.B), this Court has held that in such a situation, a person will not be entitled even to his salary. Judging the case, turn, from all its ramifications, I am of the view that the petitioner has no legal right to be enforced for the purpose of obtaining a writ of mandamus as against the respondents and, thus, I have no other option but to dismiss this application.
15. In the result, this application is dismissed.
16. However, in the circumstances of this case there will be no order as to costs.
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