2018 (11) TMI 1970 - SC - Indian Laws

Appointment of petitioner - Legality of the termination orders issued against the writ petitioners - Reinstatement of the writ petitioners therein on their respective posts with all consequential benefits - HELD THAT - It is not in dispute that the Government of Bihar in its Administrative Reforms department had issued instructions for appointment to Class III posts in the Government office under its circular No. 16440 dated 03.12.1980. The said circular applies to Class III posts other than the posts which are filled in by appointment of candidates selected by Bihar Public Service Commission after a competitive examination and to the posts which are governed by the Government resolution dated 28.01.1976 - A similar circular No. 16441 was also issued on 03.12.1980 for appointment to Class IV posts in the Muffassil Offices of the Government. These circulars had been issued to avoid discrimination in appointment to Class III and Class IV posts in the Government offices and provide for generalized procedure in consonance with Articles 14 and 16 of the Constitution. The appointment of the writ petitioners have not been made in accordance with these circulars. Therefore, the contention of the learned counsel for the writ petitioners is that since the writ petitioners have served for more than 10 years and some of them have even completed 20 years of service, they ought to have been regularized in terms of the judgment in Umadevi 2006 (4) TMI 456 - SUPREME COURT and M.L. Kesari 2010 (8) TMI 1188 - SUPREME COURT . In Umadevi the Constitution Bench has held that unless appointment is made in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it was an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. A temporary employee could not claim to be made permanent on the expiry of his term of appointment. It was also clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. In State of Orissa and Anr. v. Mamata Mohanty, 2011 (2) TMI 1371 - SUPREME COURT , this Court has held that once an order of appointment itself had been bad at the time of initial appointment, it cannot be sanctified at a later stage. In the instant cases the writ petitioners have filed the petitions before the High Court with a specific prayer to regularize their service and to set aside the order of termination of their services. They have also challenged the report submitted by the State Committee. The real controversy is whether the writ petitioners were legally and validly appointed - The writ petitioners are the beneficiaries of illegal orders made by the Civil Surgeon-cum-Chief Medical Officer. They were given notice to establish the genuineness of their appointment and to show cause. None of them could establish the genuineness or legality of their appointment before the State Committee. The State Committee on appreciation of the materials on record has opined that their appointment was illegal and void ab initio - There are no ground to disagree with the finding of the State Committee. Appeal dismissed.

Summary

Issues Involved:

1. Legality of the termination orders issued against the writ petitioners.
2. Validity of the appointments made by the Civil Surgeon-cum-Chief Medical Officer.
3. Application of the principles laid down in the Constitution Bench judgment in Umadevi (3) and M.L. Kesari regarding regularization of service.
4. Requirement of disciplinary proceedings for termination of service.

Issue-wise Detailed Analysis:

1. Legality of the Termination Orders:

The Supreme Court dealt with the appeals filed by the State of Bihar challenging the High Court's decision to reinstate the writ petitioners with consequential benefits. The High Court had previously set aside the termination orders on the grounds of violation of natural justice. However, the Supreme Court found that the termination orders were justified as the writ petitioners could not establish the legality of their appointments, which were made without following due process. The Court emphasized that the appointments were illegal and void ab initio, and thus, the termination orders were upheld.

2. Validity of the Appointments:

The appointments in question were made by the Civil Surgeon-cum-Chief Medical Officer without adhering to the prescribed legal recruitment process. The State Government discovered that many appointments were based on false or forged documents and without proper appointment orders. The Supreme Court agreed with the State Committee's findings that the appointments were illegal and void from the outset. The Court noted that the writ petitioners failed to prove the genuineness of their appointments, and thus, their claims for reinstatement were dismissed.

3. Application of Umadevi (3) and M.L. Kesari:

The Supreme Court reiterated the principles laid down in Umadevi (3) and M.L. Kesari, which state that regularization is possible only for irregular appointments, not illegal ones. The Court clarified that for regularization, the appointment must be made against a sanctioned post, and the appointee must possess the requisite qualifications. In this case, the appointments were deemed illegal as they were not made against sanctioned posts and did not follow the due process. Therefore, the Court held that the writ petitioners were not entitled to regularization under the principles of Umadevi (3) and M.L. Kesari.

4. Requirement of Disciplinary Proceedings:

The Supreme Court addressed the argument regarding the necessity of disciplinary proceedings before termination. It held that since the appointments were void ab initio, the writ petitioners could not be considered civil servants of the State. Consequently, the requirement of disciplinary proceedings under Article 311 of the Constitution or any other disciplinary rules did not arise. The Court concluded that the termination of services without disciplinary proceedings was justified in this context.

In conclusion, the Supreme Court dismissed the civil appeals filed by the writ petitioners, upheld the termination orders, and allowed the appeals filed by the State of Bihar. The Court's decision was based on the illegality of the appointments and the inapplicability of the regularization principles under Umadevi (3) and M.L. Kesari.