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Dr. Sachidananda Banerjee And Others v. State Of West Bengal And Others
Factual and Procedural Background
The appellants are erstwhile ad hoc appointees to the post of Lecturer in the West Bengal Educational Service who were posted at different government colleges. Their initial ad hoc appointments occurred on 13 November 1976, 6 December 1974 and 9 July 1976 respectively; each initial appointment was for six months and each had been reappointed after a break in service of one day on each occasion. Their services were later regularised with effect from 18 December 1985. The appellants filed a writ petition (CO. No. 18625 (W) of 1992) challenging the reckoning of their service for purposes of a career advancement scheme; a learned Single Judge dismissed that writ petition by judgment and order dated 21 September 1995. The appellants appealed against that judgment to the Division Bench presided by Satyabrata Sinha, J., which delivered the present opinion.
Legal Issues Presented
- Whether the appellants' services must be reckoned from the dates of their initial ad hoc appointments for the purpose of the career advancement scheme, rather than from the date of regularisation (18 December 1985).
- Whether the appellants, having been regularised and allowed to draw increments, are estopped or otherwise entitled to have their initial ad hoc appointment dates treated as their substantive dates of appointment.
- Whether the grant of increments to the appellants conferred any substantive legal right to backdate confirmation or seniority to their initial dates of ad hoc appointment.
- Whether the court should exercise its discretionary power under Article 226 to grant relief where the initial appointments were made in violation of statutory procedure and Articles 14 and 16 of the Constitution.
Arguments of the Parties
Appellants' Arguments
- The appellants argued that because their services were regularised and they were allowed to draw increments, they should be deemed to have been appointed from their original ad hoc appointment dates — in other words, the regularisation should relate back to the initial dates (estoppel/preclusion argument).
- The appellants relied on precedent, particularly Sushil Kumar Yadunath Jha (1986 (2) L.L.N 435), to support the proposition that their service should be treated as continuous or related back; they also relied on Bhagwan Dass v. State of Haryana (1988 (1) L.L.N 1).
- The appellants pointed to a decision of a learned Single Judge of the same High Court that had allowed a similar writ petition and argued that this Court should not pass a different order; they relied on the rule in Bir Bajrang Kumar v. State of Bihar (A.I.R. 1987 S.C. 1345) to support reliance on coordinate-bench rulings.
- They contended the impugned order was bad in law because the authority that passed it did not hear the petitioners.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments in the record of this judgment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sushil Kumar Yadunath Jha (1986 (2) L.L.N 435) | Relied on by appellants to argue that regularisation/continued service ought to relate back or provide remedy. | The Court held this decision was not helpful to the appellants because its facts were distinguishable (reappointment after three years' service in Kendriya Vidyalaya) and therefore it did not support the appellants' claim. |
| Bhagwan Dass v. State of Haryana (1988 (1) L.L.N 1) | The case was relied upon to argue for regularisation from initial dates; the decision discussed equal pay/equal work and pay computed from appointment while not treating absorption from initial date. | The Court observed this decision did not support the appellants' claim to absorption from initial appointment dates and noted it was rendered without reference to some larger-bench decisions. |
| Bir Bajrang Kumar v. State of Bihar (A.I.R. 1987 S.C. 1345) | The appellants relied on a coordinate-bench decision principle (argument that a similar Single Judge's order should control). | The Court noted a Single Judge's decision is not binding on a Division Bench and declined to follow the unproduced Single Judge judgment; it emphasized that comity does not require following an earlier decision when it is per incuriam or not produced. |
| Rabindra Sharma v. State of Punjab and Haryana ((1995) 1 SCC 138) | Held that any appointment made in violation of a statute is a nullity. | The Court relied on this authority to support the proposition that the appellants' appointments, made contrary to statutory procedure, were illegal and could not confer substantive rights. |
| N. Mohanan v. State of Kerala ((1997) 2 SCC 556) | The opinion references this case in the context of appointments in violation of statute being void. | The Court cited it among authorities establishing that appointments contrary to statute are nullities; it was used to buttress the conclusion of illegality of the ad hoc appointments. |
| Santosh Kumar Verma (1998 (1) L.L.N 560) | Referenced by the Court in the group of authorities addressing legality of appointments. | The Court cited it as part of a line of authority supporting the view that appointments violating statutory procedure do not create substantive rights. |
| State of Orissa v. Dr. Prari Mohan Misra (1996 (2) L.L.N 520) | Principle quoted: "Mere prolonged or continuous service does not ripen into regular service to claim permanent or substantive status." | The Court relied on and quoted this principle directly to reject the appellants' contention that prolonged service or regularisation and increments created substantive rights from initial dates. |
| Government of Andhra Pradesh v. V. Srinivas Reddy (1994 A.I.R S.C.W 4868) | Held that appointments made in contravention of law cannot be taken into account for seniority; seniority is to be reckoned from date of regularisation. | The Court relied on this authority to support the position that seniority and reckoning of service must be measured from the date of regularisation, not from illegal initial appointments. |
| B.N. Nagarajan v. State of Karnataka (1980 (1) L.L.N 9) | Cited in relation to the principle regarding reckoning seniority and legality of appointments. | The Court cited it among authorities establishing that illegal appointments cannot be taken into account for seniority purposes. |
| R.N. Nenjndappa v. J. Thimmaiah (1972 L. & I.C 618) | Cited as part of authority on seniority and illegality of appointments. | The Court included it as supporting precedent for reckoning seniority from regularisation rather than from an illegal appointment date. |
| Arundhati A. Pargaonkar v. State of Maharashtra (1994 Supp (3) SCC 380 : A.I.R 1995 S.C 962) | Referenced as authority on the consequences of irregular appointments and seniority. | The Court cited it as part of the consistent line of cases holding that illegal appointments do not confer substantive rights as to seniority and related entitlements. |
| (1994) 2 SCC 204 : A.I.R 1994 S.C 1654 | Referenced in the statement "a person who has come in through backdoor must go through that door." (i.e., backdoor entrants cannot claim regularisation rights beyond limited purposes). | The Court relied on this decision as part of the principle that those who entered service through irregular means cannot claim full substantive rights from the irregular date. |
| (1996) 7 SCC 499 : A.I.R 1996 S.C 3230 | Also cited for the principle that a person who has come in through backdoor must go through that door. | The Court used it along with other authorities to reinforce that the appellants cannot claim substantive rights from their initial ad hoc appointments. |
| (1996) 2 SCC 459 : A.I.R 1996 S.C 1175 | Cited for the proposition that Article 14 is a positive concept and for related principles concerning legitimacy of orders and equality. | The Court referenced it when discussing that illegal orders cannot be invoked under Article 14 (i.e., "no equality in illegality") and for the positive aspect of Article 14. |
| (1994) 2 SCC 630 | Cited for the proposition that appointment cannot be made by mere regularisation. | The Court relied on it to reject any contention that regularisation alone could create a valid original appointment date for substantive rights. |
| (1974) 2 SCC 506 : A.I.R 1974 S.C 2177 | Cited in the context of "equality in illegality" and limits on invoking illegal actions to claim rights under Article 14. | The Court cited it to support the proposition that one cannot invoke an illegal order to claim equality under Article 14. |
| (1995) 1 SCC 745 : A.I.R 1995 S.C 705 | Referenced by the Court among authorities dealing with illegal orders and Article 14 implications. | The Court cited it as part of the broader set of authorities indicating that illegal orders cannot be relied upon to create rights under Article 14. |
| Narendra Nath Palui v. State of West Bengal (99 C.W.N 440; 100 C.W.N 48) | Cited as State or High Court-level authorities on related principles of seniority/reckoning. | The Court cited these decisions as part of the consistent municipal jurisprudence supporting reckoning from regularisation and not from illegal appointments. |
| 1997 L. & I.C 2384; 1997 L. & I.C 2557; 1996 L. & I.C 1236 | These citations are mentioned by the Court as part of the corpus of cases dealing with irregular appointments, seniority and related questions. | The Court cited these authorities collectively but the opinion does not specify an explicit rule from each; they were referenced as supportive precedents in the line of authority. |
Court's Reasoning and Analysis
The Court accepted the factual position that the appellants had been appointed on an ad hoc/back-door basis without compliance with the statutory recruitment procedure applicable to Government college lecturers. The analysis proceeded along the following lines, as stated in the opinion:
- The appointments were effected without following the recruitment rules prescribed by the State and without involving the Public Service Commission as required under Article 320 of the Constitution; no advertisement was made nor were names called from the local employment exchange. Consequently, the initial appointments were unlawful and contrary to Articles 14 and 16 of the Constitution.
- Authorities of the Supreme Court were cited for the legal propositions that (a) appointments in violation of statute are nullities, (b) regularisation does not, by itself, create a substantive appointment retrospectively, and (c) prolonged or continuous service does not automatically transform an irregular or ad hoc appointment into a regular substantive appointment. In particular the Court quoted State of Orissa v. Dr. Prari Mohan Misra for the proposition that "Mere prolonged or continuous service does not ripen into regular service to claim permanent or substantive status."
- On the specific question of seniority and reckoning of service, the Court relied on authorities (including Government of Andhra Pradesh v. V. Srinivas Reddy and others) holding that where an appointment is in contravention of law it cannot be taken into account for seniority; seniority must be reckoned from the date of regularisation.
- The Court addressed the appellants' estoppel argument (regularisation and increments) and found it insufficient: the grant of increments was explained by the learned Single Judge as being for purposes of fixation of pay and not conferring substantive legal rights; the Division Bench agreed that increments and regularisation did not validate the original illegal appointment dates for purposes of the career advancement scheme.
- The Court considered but rejected reliance on isolated or distinguishable decisions (such as Sushil Kumar Yadunath Jha and Bhagwan Das), explaining either that those decisions were factually distinguishable or did not consider larger-bench precedents and therefore did not support the appellants' claims.
- Regarding the appellants' reliance on a prior Single Judge's order in a similar matter, the Court noted a Division Bench is not bound by a Single Judge's order, especially when the earlier judgment was not produced and when the court is guided by later pronouncements of the Supreme Court and other courts. The Court also observed that comity among coordinate benches does not require following an earlier judgment that is per incuriam.
- The Court finally observed the discretionary nature of relief under Article 226: even if there were procedural infirmities in the impugned order (such as alleged non-hearing by the authority), the court may decline to quash an illegal order if the petitioner does not possess an independent legal right; here the appellants lacked such a legal right to the relief sought.
Holding and Implications
Holding:
Appeal dismissed.
Implications and direct effects:
- The Division Bench agreed with the learned Single Judge that the appellants did not acquire a substantive right to have their service reckoned from the dates of their initial ad hoc appointments. Their service for purposes such as seniority and the career advancement scheme must be reckoned from the date of their regularisation (as relevant in their case).
- The grant of increments was held not to have created a substantive legal right to backdate confirmation or seniority; increments were treated as for fixation of pay and not conferring the substantive status claimed.
- The Court refused to exercise its discretionary power under Article 226 to grant the relief claimed because the appellants did not have an independent legal right founded on valid appointment procedure; consequently, the impugned relief was denied and the appeal dismissed. There was no order as to costs.
- The opinion adopts and applies existing Supreme Court authority on illegality of appointments, seniority reckoning, and the limited remedial effect of regularisation and prolonged service; it does not purport to lay down a novel legal principle beyond the precedents it applies.
This summary is based exclusively on the content of the provided opinion. No facts or legal propositions not present in the opinion have been added.
Cases referred: Paras. 1. 1998 (1) L.L.N 560 6 2. 1997 L.& I.C 2557 7 3. 1997 L.& I.C 2384 7 4. (1997) 2 SCC 556 : A.I.R 1997 S.C 1896 6 5. 1996 (2) L.L.N 520 6 6. (1996) 7 SCC 499 : A.I.R 1996 S.C 3230 8 7. 1996 L.& I.C 1236 7 8. (1996) 2 SCC 459 : A.I.R 1996 S.C 1175 12 9. (1995) 1 SCC 138 6 10. 1994 Supp (3) SCC 380 : A.I.R 1995 S.C 962 7 11. (1995) 1 SCC 745 : A.I.R 1995 S.C 705 12 12. (1994) 2 SCC 630 6 13. 1994 A.I.R S.C.W 4868 7 14. (1994) 2 SCC 204 : A.I.R 1994 S.C 1654 8 15. 1988 (1) L.L.N 1 2 and 10 16. A.I.R 1987 S.C 1345 3 17. 1986 (2) L.L.N 435 2 and 9 18. 1980 (1) L.L.N 9 7 19. (1974) 2 SCC 506 : A.I.R 1974 S.C 2177 12 20. 1972 L. &I.C 618 7 21. 100 C.W.N 48 7 22. 99 C.W.N 440 7
For appellants.— Sri Manik Chandra Niyogi and Sri Shyamal Bhattacharjee.
For Respondents.— Sri T.N Shukla and Sri Anil Kumar Gupta.
The Judgment of the Court was delivered by
Satyabrata Sinha, J.:— The writ-petitioners are the appellants. They being aggrieved by and dissatisfied with the judgment and order, dated 21 September 1995, passed by a learned Single Judge of this Court in CO. No. 18625 (W) of 1992 have preferred this appeal. By the said judgment and order, the writ application was dismissed. The fact of the matter is not much in dispute. The petitioners were appointed on ad hoc basis in the post of Lecturer of the West Bengal Educational Service and posted at different Government colleges on 13 November 1976, 6 December, 1974 and 9 July, 1976 respectively. It is not the case of the petitioners nor it appears from the writ petition that they were appointed upon following the recruitment rules as provided for in the statute and upon compliance of the provisions of Arts. 14 and 16 of the Constitution of India. Initially they were appointed for six months and they had been reappointed after break in service for a day on each occasion. Admittedly, the State Government (which in our opinion had no say in the matter) regularised their services with effect from 18 December 1985. The petitioners contend that in relation to the career advancement scheme adopted by the respondents their services should have been confirmed with effect from their respective dates of appointment on ad hoc basis and not from the date of regularisation. Before the learned trial Judge, the learned counsel for the appellant produced a copy of the order passed by a learned Judge of this Court showing that a similar writ application had been allowed. Before the learned trial Judge also a circular, dated 16 August 1986, was produced which is contained in Anenxure B to the writ application. The learned trial Judge upon hearing the parties came to the conclusion that the petitioners appointment being illegal their services cannot be reckoned from their respective date of initial appointment but would be counted from the date of regularisation. As regard the contention of grant of increment, the learned trial Judge held that the same was granted for the purpose of fixation of increment in the scale of pay and thereby the petitioners did not derive any legal right. The learned trial Judge also refused to exercise his discretion on the ground of delay as according to the learned trial Judge the petitioners having been appointed initially in the year 1974 or 1976 could not have maintained the writ application in the year 1992.
2. Sri Manik Chandra Niyogi, learned counsel for the appellants, has raised three contentions in support of this appeal. The learned counsel contends that keeping in view the fact that as the service of the petitioners/appellants had been regularised and they have been allowed to draw increment, they would be deemed to have been appointed from the date of their initial appointment particularly in view of the fact that break in service has been condoned by the concerned authority himself. According to the learned counsel for the appellants they were appointed legally and the state and its officers at this stage are estopped and precluded from contending that for the purpose of implementation of career advancement scheme their services should be counted from the date of their initial appointment on ad hoc basis. In support of the aforementioned contention strong reliance has been placed upon a decision of the Apex Court in the case of Sushil Kumar Yadunath Jha v. Union of India reported in 1986 (2) L.L.N 435. It was next contended that in any event, the petitioners' services were bound to be regularised from the respective dates of their initial appointment on ad hoc basis and in support of the said contention reliance has been placed on a decision in the case of Bhagwan Dass v. State of Haryana reported in 1988 (1) L.L.N 1.
3. Sri Niyogi, learned counsel for the appellants, has contended that keeping in view the fact that a learned Single Judge of this Court had allowed a similar writ application as it appears from page 14 of the Paper Book, this Court should not pass any other order in support of the aforementioned contention the learned counsel has sought to place reliance on a decision in the case of Bir Bajrang Kumar v. State Of Bihar reported in A.I.R 1987 S.C 1345. It was further contended that the order impugned in the writ application was bad in law as the same was in contravention of the direction passed by this Court, inasmuch as, the authority who had not heard the matter passed the said order.
4. Having heard the learned counsel for the parties, we are Unable to agree with the submission made by the learned counsel for the appellants. The petitioners were appointed through back-door. At the time of their appointment the provision of the statute had not been followed at all. Articles 14 and 16 of the Constitution of India envisage that all persons should get equal opportunity of employment. Admittedly, prior to the appointment of the appellants neither any advertisement has been made nor any name has been called for from the local Employment Exchange.
5. It is accepted at the Bar that for the purpose of appointment of Lecturer in the college and that too in a Government college the rules framed by the State are required to be followed. In terms of Art. 320 of the Constitution of India the appointment of the appellants admittedly were to be made by the Public Service Commission. The Public Service Commission has not been approached. Even in the matter of regularisation of services of the petitioners, the opinion of the Public Service Commission had not been taken. Initial appointments of the petitioners being contrary to the public policy and contrary to the provision of law as well as Arts. 14 and 16 of the Constitution of India were wholly illegal.
6. Reference in this connection may be made to the case reported in Rabindra Sharma v. State of Punjab and Haryana [(1995) 1 SCC 138]. The Supreme Court has clearly held that any appointment made in violation of a statute is nullity. Reference in this connection may also to be made to N. Mohanan v. State of Kerala reported in (1997) 2 SCC 556 : A.I.R 1997 S.C 1896 and Santosh Kumar Verma v. State of Bihar reported in 1998 (1) L.L.N 560. In the case reported in (1994) 2 SCC 630, the Apex Court has clearly held that appointment cannot be made by regularisation. The submission of Sri Niyogi, learned counsel, to the effect that the petitioners are continuing in service for a long time and, thus, they should be deemed to have been appointed on their initial dates of appointment cannot be accepted in view of clear pronouncement of the Apex Court in the case of State of Orissa v. Dr. Prari Mohan Misra reported in 1996 (2) L.L.N 520, wherein the law has clearly been stated in the following terms:
“Mere prolonged or continuous service does not ripen into regular service to claim permanent or substantive status.”
7. A similar question as regard seniority recently arose before the Apex Court in the case reported in Government of Andhra Pradesh v. V. Srinivas Reddy [1994 A.I.R S.C.W 4868], Ramaswamy, J., relying upon the decision of the Supreme Court in the case of B.N Nagarajan v. State of Karnataka reported in 1980 (1) L.L.N 9 and R.N Nenjndappa v. J. Thimmaiah reported in 1972 L. & I.C 618, which judgment was rendered by three-Judges Bench, held that the appointment which was made in contravention of law cannot be taken note of for the purpose of seniority and the seniority of an employee would be reckoned from the date of his regularisation. This aspect of the matter has been considered by the Supreme Court of India again in the case of Arundhati A. Pargaonkar v. State of Maharashtra reported in 1994 Supp (3) SCC 380 : A.I.R 1995 S.C 962, which in turn has been considered by this Court in numerous decisions. To quote a view reference may be made to 1996 L. & I.C 1236 (sic), 99 C.W.N 440 Narendra Nath Palui v. State of West Bengal and 100 C.W.N 48. See also 1997 L. & I.C 2384 and 1997 L.&I.C 2557.
8. The Apex Court has also clearly held that a person who has come in through backdoor must go through that door. Reference in this connection may be made to (1994) 2 SCC 204 : A.I.R 1994 S.C 1654 and (1996) 7 SCC 499 : A.I.R 1996 S.C 3230.
9. In this view of the matter, we are of the opinion that the learned trial Judge has correctly held that the petitioners did not get any substantive right as regard reckoning of his initial date of appointment for the purpose of implementation of career advancement scheme. The appointment made by the college without following the procedure of law and without compliance of the principles laid down in Arts. 14 and 16 of the Constitution of India could not have been taken recourse to. The decision of the Apex Court in the case of Sushil Kumar v. Union of India reported in 1986 (2) L.L.N 435 (vide supra), is of no help to the petitioners. In that case the appellant before the Apex Court was reappointed after serving Kendriya Vidyalaya for a period of three years. It was held that there is no doubt that the appellants service was terminated but the grounds on which they are said to have terminated have subsequently not been found to be such as to constitute a permanent deterrent to a favourable consideration of the appellants' case.
10. In the case of Bhagwan Das v. State of Haryana reported in 1988 (1) L.L.N 1 (vide supra), the Apex Court did not consider the earlier decisions rendered by larger Bench. The latter decisions also do not support the said view. In any event, the said decision was rendered on the basis of the doctrine of equal pay equal work. The said decision also runs counter to the submission of the learned counsel for the appellants, as it was clearly held therein that they are not entitled to be absorbed as regular employees on a permanent basis from the date of their initial appointment but, however, they were entitled to pay on the basis of the length of service computed from the date of their appointment by disregarding breaks which have been given for a limited purpose.
11. In our opinion, therefore, the prayer of the petitioners to absorb them on a permanent basis from the date of their initial appointment on ad hoc basis has no justification.
12. It is true that a learned Single Judge of this Court in a similar situation has allowed a writ application. Apart from the fact that this Bench is not bound by the judgment of a learned Single Judge of this Court, the questions which have been raised in this writ application might not have been raised in the said application. No copy of the said judgment has been produced before this Court except a statement made in the writ application. Apart from the fact that we do not know as to how and under what circumstances the said judgment was rendered, in this case, we are taking into consideration the latest pronouncements of the Apex Court, this Court and other Courts. Furthermore, although it may be true that a co-ordinate bench should not pass any order in deviation or in departure of the judgment of another bench, but the same is done for the purpose of maintaining comity or amity in the decision. The said principle is not applicable when the earlier judgment was rendered per incurium. The petitioners who do not have any independent legal right cannot maintain a writ petition on the basis of such decisions. It is well-known that an illegal order passed by the authority cannot be invoked for the purpose of Art. 14 of the Constitution of India as there is no equality in illegality. Reference in this connection may be made to (1974) 2 SCC 506 : A.I.R 1974 S.C 2177 and (1995) 1 SCC 745 : A.I.R 1995 S.C 705. Furthermore, the Apex Court has clearly held that Art. 14 of the Constitution of India is a positive concept. Reference in this connection may be made to (1996) 2 SCC 459 : A.I.R 1996 S.C 1175. Furthermore if an illegal order has been passed, in our considered view, the petitioners cannot be permitted to obtain the same illegal order relying on Art. 14 of the Constitution of India. So far as the submission of Sri Niyogi, learned counsel for the appellants, to the effect that the order impugned in the writ application is bad in law as the authority who had passed the order did not hear the petitioners are concerned, even if accepted to be correct, the same need not be set aside as we have heard the petitioners at great length on the merit of their case. The said question was not raised before the learned trial Judge. As upon hearing the learned counsel for the appellants we are satisfied that the appellants are not entitled to any relief, such relief cannot be granted only because the order impugned in the writ application might not have been passed in accordance with law. It is a well-known principle of law that the relief under Art. 226 of the Constitution of India is a discretionary relief and while granting such relief the court if finds that an illegal order has been passed, may refuse to quash the same in the event it comes to a conclusion that the petitioner does not have any legal right to maintain a writ application.
13. For the reason aforementioned, we do not find any merit in this appeal which is accordingly dismissed.
14. There will be no order as to costs.
15. Ronojit Kumar Mitra, J.:— I agree.
Appeal dismissed.
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