2009 (3) TMI 1064 - SC - Indian Laws

Ad hoc appointments - Doctrine of equality - dozens appointments made without sanctioned posts and without following the procedure prescribed vide circular - violation of the rules and relevant instructions - Order of reinstatement - Equality of opportunity - The competent authority passed orders terminating the services of the respondents who challenged the same by filing a petition under Article 226 of the Constitution of India which was registered as CWJC No. 7816. The respondents pleaded that the action taken against them was vitiated due to violation of the rules of natural justice and arbitrary exercise of power because the concerned authority did not give them the effective opportunity of hearing and the instruction contained in memorandum dated 16.4.1996 could not have been applied to their case because they had been appointed prior to cut off date specified therein i.e. 28.10.1991. The appellant herein contested the writ petition by asserting that the services of the writ petitioners were terminated because their initial appointments were illegal. ld Single Judge relied upon the order passed in CWJC No. 5140 and quashed the termination of the respondents services with a direction that they be reinstated with consequential benefits. Letters Patent Appeal No. 61 of 2007 filed by the appellant was dismissed by the Division Bench on the ground that similar appeals filed in the cases of Arun Kumar and others and Arjun Chaudhary had already been dismissed. In the opinion of the Division Bench a different view could not be taken in the case of the respondents because that would give rise to an anomalous situation. HELD THAT - For ensuring that equality of opportunity in matters relating to employment becomes a reality for all Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act 1959 ( the 1959 Act ). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same. In Union of India and Ors. v. N. Hargopal and Ors. 1987 (4) TMI 491 - SUPREME COURT and Arun Kumar Nayak v. Union of India and Ors. 2006 (9) TMI 589 - SUPREME COURT held that in terms of Section 4 of the 1959 Act every public employer is duty bound to notify the vacancies to the concerned employment exchange so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation employment news bulletins get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together. SPOIL SYSTEM - A BIRD S EYE VIEW - With a view to insulate the public employment apparatus in independent India from the virus of spoil system the framers of the Constitution not only made equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen but also enacted a separate part i.e. Part XIV with the title Services under the Union and the States . However the hope and expectation of the framers of the Constitution that after independence every citizen will get equal opportunity in the matter of employment or appointment to any office under the State and members of civil services would remain committed to the Constitution and honestly serve the people of this country have been belied by what has actually happened in last four decades. Unfortunately some orders passed by the Courts have also contributed to the spread of spoil system in this country. The judgments of 1980s and early 1990s show that this Court gave expanded meaning to the equality clause enshrined in Articles 14 and 16 and issued directions for treating temporary/ad hoc/daily wage employees at par with regular employees in the matter of payment of salaries etc. In some cases the schemes framed for regularization of the services of the backdoor entrants were also approved. As a result of this beneficiaries of spoil system and corruption garnered substantial share of Class III and Class IV posts and thereby caused irreparable damage to the service structure at the lower levels. Those appointed by backdoor methods or as a result of favoritism nepotism or corruption do not show any commitment to their duty as public servant. Not only this majority of them are found to be totally incompetent or inefficient. Whether the High Court was justified in directing reinstatement of the respondents with consequential benefits? - HELD THAT - In view of the contradictory assertions made by the parties on the issue of legality of the respondents initial appointment the minimum which the ld Single Judge should have done was to call upon the respondents to produce copies of the advertisement issued by the competent authority and/or requisition sent to the employment exchange and letters of interview if any issued to them to prove that they were appointed by following a fair procedure and after considering the claims of all eligible persons. However without making any endeavour to find out whether the appointments of the respondents were made after following some procedure consistent with the doctrine of equality the ld Single Judge quashed the termination of their services simply by relying upon the order passed in another case and by observing that the writ petitioners (respondents herein) had been appointed before the cut off date i.e. 28.10.1991 specified in letter dated 16.4.1996 and they had worked for almost 10 years. The so-called regularization of the services of the respondents on which heavy reliance was placed by the learned senior counsel appearing on their behalf in the context of averments of the counter affidavit filed before this Court by Shri Prasannjeet Kumar Singh (respondent No. 3) is a proof of nepotism practiced by the officer and deserves to be ignored. For the reasons best known to them the respondents have not produced copy of the order by which their services were regularised. Perhaps none exists. The statement furnished by counsel for the appellant which is accompanied by documents marked A and B shows that in less than 7 months of the respondents appointment (except respondent No. 1 who is said to have been appointed with effect from 9.10.1991) Regional Director Animal Husbandry Gaya is said to have written confidential memorandum bearing No. 20 dated 11.5.1992 (Annexure A ) to District Animal Husbandry Officer Aurangabad Gaya that ad hoc appointments made vide Memorandum No. 1467 dated 9.10.1991 are being regularized temporarily by the local appointments committee constituted on 11.5.1992. What is most amazing to notice is that the local appointments committee was constituted on 11.5.1992 the committee met on the same day and regularised the ad hoc appointments and on that very day the Regional Director sent confidential letter to his subordinate i.e. the District Animal Husbandry Officer informing him about the regularization of ad hoc appointments. No rule or policy has been brought to our notice which empowers the appointing authority to regularize ad hoc appointments within a period of less than 7 months. Therefore we have no hesitation to hold that the exercise undertaken by Regional Director for showing that appointments of the respondents were regularized by the local appointments committee on 11.5.1992 was a farce. Therefore we hold that the initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the ld Single Judge gravely erred by directing their reinstatement with consequential benefits. The issue which remains to be considered is whether the Division Bench of the High Court was justified in refusing to examine legality and legitimacy of the initial appointments of the respondents only on the ground that the State had not challenged the dismissal of Letters Patent Appeals filed in other cases. In our view the approach adopted by the Division Bench was clearly erroneous. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order. In view of the above stated legal position the order passed by the Division Bench dismissing the Letters Patent Appeal cannot be sustained. Appeal is allowed the orders of the ld Single Judge and Division Bench are set aside and the writ petition filed by the respondents is dismissed.

Summary

Issues Involved:
1. Legality of ad hoc appointments.
2. Compliance with the rules and procedures for public employment.
3. Validity of the High Court's decision to reinstate the respondents with consequential benefits.
4. The doctrine of equality under Articles 14 and 16 of the Constitution.
5. The impact of spoil system on public employment.

Detailed Analysis:

1. Legality of Ad Hoc Appointments:
The judgment scrutinizes the legality of ad hoc appointments made by Dr. Darogi Razak, the then Regional Director, Animal Husbandry, Gaya. It highlights that these appointments were made without issuing any advertisement, sending requisition to the employment exchange, or following any selection procedure. The respondents were beneficiaries of these illegal appointments. The inquiry conducted revealed that about 5 dozen appointments were made without sanctioned posts and without following the prescribed procedure.

2. Compliance with Rules and Procedures:
The judgment emphasizes the necessity of adhering to the rules and procedures for public employment. It states that the competent authority is required to advertise the posts or at least send requisition to the employment exchange and make selection from amongst the eligible persons. The appointments in question were made in gross violation of these requirements, thereby violating the doctrine of equality enshrined in Articles 14 and 16 of the Constitution.

3. Validity of High Court's Decision:
The High Court's decision to reinstate the respondents with consequential benefits was based on the order passed in another case and the fact that the respondents had been appointed before the cut-off date specified in the letter dated 16.4.1996. However, the Supreme Court found that the High Court failed to verify whether the appointments were made following a fair procedure. The Supreme Court held that the initial appointments were illegal and the direction for reinstatement could not be approved.

4. Doctrine of Equality under Articles 14 and 16:
The judgment underscores the principle that equality of opportunity in public employment is a fundamental right under Articles 14 and 16 of the Constitution. It asserts that appointments to public posts should be made by open advertisement to enable all eligible persons to compete for selection on merit. The Supreme Court reiterated that the guarantee of equality before law cannot be enforced in a negative manner and that illegal or irregular orders cannot be used to claim similar benefits.

5. Impact of Spoil System on Public Employment:
The judgment provides an extensive discussion on the spoil system, its historical context, and its detrimental impact on public employment. It highlights that the spoil system has led to the appointment of unqualified individuals, thereby undermining the merit-based selection process. The Supreme Court emphasized the need to adhere to the constitutional scheme of public employment to prevent the perpetuation of illegalities and ensure fairness and equality of treatment.

Conclusion:
The Supreme Court allowed the appeal, set aside the orders of the learned Single Judge and Division Bench, and dismissed the writ petition filed by the respondents. It held that the initial appointments of the respondents were made in gross violation of the doctrine of equality and the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. The Court also emphasized that the guarantee of equality before law cannot be used to perpetuate illegalities.