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TMI Blog2018 (11) TMI 1970X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment. 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil) No. 158 of 2014), Civil Appeal No.8663 of 2018 (Arising out of S.L.P. (Civil) No. 159 of 2014), Civil Appeal No.8665 of 2018 (Arising out of S.L.P. (Civil) No. 156 of 2014), Civil Appeal No.8666 of 2018 (Arising out of S.L.P. (Civil) No. 151 of 2014), Civil Appeal No.8668 of 2018 (Arising out of S.L.P. (Civil) No. 23837of 2014), Civil Appeal No.8670 of 2018 (Arising out of S.L.P. (Civil) No. 30707 of 2014), Civil Appeal No.8673 of 2018 (Arising out of S.L.P. (Civil) No. 29496 of 2014), CIVIL APPEAL NOS. 8674- 8676 of 2018 (Arising out of S.L.P. (Civil) Nos. 29490-29492 of 2014), Civil Appeal No.8677 of 2018 (Arising out of S.L.P. (Civil) No. 31562 of 2014), Civil Appeal No.8678 of 2018 (Arising out of S.L.P. (Civil) No. 34248 of 2014), Civil Appeal No.8683 of 2018 (Arising out of S.L.P. (Civil) No. 32590 of 2014), Civil Appeal No.8684 of 2018 (Arising out of S.L.P. (Civil) No. 34132 of 2014), Civil Appeal No.8687 of 2018 (Arising out of S.L.P. (Civil) No. 32645 of 2014), Civil Appeal No.8688 of 2018 (Arising out of S.L.P. (Civil) No. 33131 of 2014), Civil Appeal No.8689 of 2018 (Arising out of S.L.P. (Civil) No. 32673 of 2014), Civil Appeal No.8690 of 2018 (Arising out of S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed by the State of Bihar challenging the order of the High Court of Judicature at Patna, whereby the Division Bench has confirmed the order of the learned Single Judge directing reinstatement of the writ petitioners therein on their respective posts with all consequential benefits in terms of the order dated 6.10.2009 in CWJC No. 6575 of 2009 and analogous cases. In CWJC No. 6575 of 2009 and other connected matters, learned Single Judge while allowing writ petitions has directed reinstatement of the writ petitioners therein from the date of their termination on the post, they were working with all consequential benefits. The Letter Patent Appeals filed by the State of Bihar challenging the said order have been dismissed by the Division Bench of the High Court holding that the writ petitioners have been working continuously for more than ten years without protection of any interim orders of the Court and Tribunal. It was further held that in view of the Constitution Bench judgment of this Court in Secretary, State of Karnataka and others v. Umadevi (3) and others, 2006 (4) SCC 1 and in State of Karnataka and others v. M.L. Kesari and others, 2010 (9) SCC 247, the termination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s IV service and were serving as such for a long time. They had claimed the benefit of regularisation in service. In view of the judgment of this Court in Umadevi (supra), the Division Bench in State of Bihar v. Purendra Sulan Kit, reported in 2006 (3) PLJR 386, directed the State Government to find out which of the affected employees are entitled for regularisation. The direction of the Division Bench is as under: All the Letters Patent Appeals whether preferred by the State or by affected employees and all the Writ Petitions preferred by the affected employees are hereby disposed of by this common judgment and order 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 Karnataka vs. Uma Devi (supra) as to which of such affected employees are fit for regularisation in terms of that judgment, particularly in terms of paragraph 44 of the judgment. Such exercise should be completed within a period of six months from today. If for any good reason, the time period is requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the learned Single Judge were challenged by filing LPAs before the Division Bench. The Division Bench allowed some of the appeals. In some cases, the Division Bench directed the State Government for regularisation in service of the writ petitioners. These orders are under challenge in the instant appeals. 9. Learned senior counsel appearing for the State of Bihar submits that the writ petitioners are illegal appointees. Those whose appointments were found to be irregular by the committee constituted in pursuance of the judgment and order of the Division Bench were distinct from those whose appointments were illegal and the same cannot be treated on the same footing. Since, the appointments of the writ petitioners were found illegal, their services were terminated after giving them an opportunity of hearing. The State Committee has examined the correctness of appointment of each of the writ petitioners and found them to be illegal. The appointment of the writ petitioners have not been made against the vacant post by the competent authority. Their appointment was on non-sanctioned post by incompetent authority, without an advertisement and that their appointment could not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 (supra) and M.L. Kesari (supra). 13. In Umadevi (supra) 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 paragraph 43 of Umadevi (supra), it was held as under: 43. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. (Emphasis supplied) 14. However, in paragraph 53 an exception is made to the general principles against regularisation as a one-time measure which is as under: 53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, 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 the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. (Emphasis supplied) 16. In State of Orissa and Anr. v. Mamata Mohanty, (2011) 3 SCC 436, 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. It was held thus: 68(i) The procedure prescribed under the 1974 Rules has not been followed in all the cases while making the appointment of the respondents/ teachers at initial stage. Some of the persons had admittedly been appointed merely by putting some note on the notice board of the College. Some of these teachers did not face the interview test before the Selection Board. Once an order of appointment itself had been bad at the time of initial appo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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