IMPORTANT POINT
Any posting which is dehors the budgetary grant and on a non-existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised and no right would accrue to the incumbent of such an imaginary or shadow vacancy.

Headnote:(i) Constitution of Inida—Art. 36 —Appeal—Difference of opinion between two Judges of this Court which earlier heard these matters—Matters placed before this larger Bench—Tuberculosis Eradication Scheme—Appointments of Class III and Class IV employees—Deputy Director of Scheme appointed around 6000 employees against sanctioned posts of 2250—Appointments made were in violation of instructions issued by the Government—Procedure for appointment not followed—Whether the appointments made were legal and valid?—(No) (Para 12)—Whether confirmation of these employees was legally justified?—(No) (Para 14)—Whether principles of natural justice were violated by terminating services of all these 6000 employees appointed?—(No)—Relief, if any to be granted. (Para 19)
       Held that at least 3750 employees were drafted in the Scheme by Dr. Mallick without there being any vacancies to receive them. Under these circumstances their initial entry must be held to be totally unauthorised, incompetent and void. It is axiomatic that when these recruitments were not supported by any budgetary grants there will be no occasion to make available finances to meet their salary expenses. Even apart from that, Dr. Mallick threw all the discretion to the winds, acted as monarch of what he surveyed and in a most arbitrary fashion adopting the principle of ‘pick and choose’, recruited these 6000 employees completely violating the established norms and procedures for recruiting Class III and Class IV employees as laid down by the State Government from time to time. We agree with the contention of Shri Singh, learned counsel for the respondent-State that all these recruitments made by Dr. Mallick were arbitrary, capricious and were null and void as he did violence to the established norms and procedures for recruiting such employees. Dr. Mallick was not giving appointments to these employees on his private establishment. He was recruiting them in a Government Programme which was supported by Planned Expenditure. Such recruitment to Public services could not have been effected in such a cavalier fashion in which it was done by Dr. Mallick. The procedure laid down for recruiting Class III and Class IV employees were followed by Dr. Mallick while recruiting ad hoc/daily wage employees at the initial stage in the Tuberculosis Eradication Scheme supervised and monitored by him. It is axiomatic that unless there is vacancy there is no question of filling it up. There cannot be an employee without a vacancy or post available to which he can work and can be paid as per the budgetary sanctions. It appears that Dr. Mallick suffering from wrong notions of power and authority under the said Government Resolution and without bothering to find out whether there were vacancies or not under the Scheme indulged in self-help to recruit as many Class III and Class IV employees as suited him and the result was that he loaded a dead weight of burden of these employees on the State exchequer by resorting to a completely unauthorised exercise. The State authorities were justified in refusing to release salaries for paying this unauthorised army of staff which represented a host of unwelcome guests. They were all persona non grata and were not employees in the real sense of the term. It must, therefore, be held that the appointments of 6000 employees as made by Dr. Mallick in the Tuberculosis Eradication Scheme were ex facie illegal. As they were contrary to all recognised recruitment procedures and were highly arbitrary, they were not binding on the State of Bihar. (Para 12)
       Further held, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisation and whatever purported regularisation was effected in their favour remained an exercise in futility. Despite all these communications neither the initial appointments nor the confirmations were done by following the prescribed procedure. On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(a) of the Constitution of India both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so-called regularisations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the Scheme by Dr. Mallick. (Para 14)
       Consequently held that principles of natural cannot be subjected to any straight jacket formula. They will vary from case to case, from circumstances to circumstance and from situation to situation. Here is a case in which 6000 employees were found squatting in the Tuberculosis Scheme controlled and monitored by Dr. Mallick for the entire State of Bihar and there was no budgetary sanction for defraying their expenditure. At least out of the 6000 employees as seen earlier 3750 were totally unauthorised and were squatting against non-existing vacancies. A grave situation had arisen which required immediate action for clearing the stables and for eradicating the evil effects of these vitiated recruitments so that the Tuberculosis Eradication Scheme could be put on a sound footing. When such a grave situation had arisen and when matters had gone up to the High Court wherein the State was directed to appoint a Committee to thoroughly investigate the entire matter, the State of Bihar had to appoint a Committee to scrutinise these appointments and to filter them as directed by the High Court of Patna. For undertaking the said exercise public notices were issued by the Director-in-Chief, Health Services, Bihar. Thus the basic principles of natural justice cannot be said to have been violated by the Committee which ultimately took decision on the basis of the personal hearing given to the concerned employees and after considering what they had to say regarding their appointments. Whatever was submitted by the concerned employees was taken into consideration and then the committee came to a firm decision to the effect that all these appointments made by Dr. Mallick were vitiated from the inception and were required to be set aside and that is how the impugned termination orders were passed against the appellants. On the facts of these cases, therefore, it cannot be said that principles of natural justice were violated or full opportunity was not given to the concerned employees to have their say in the matter before their appointments were recalled and terminated. (Para 17)
       Finally held : However there is one human aspect which calls for our attention on the facts of the present cases. These 6000 employees got employed by Dr. Mallick over at least a decade. Many of them served for number of years and got confirmed. They would naturally have their families to support. For no fault of theirs they found themselves stranded in life midstream. Many might have got overaged. As Dr. Dhavan pointed out, many of them also got trained under the second phase of the Programme, as he would like to style it, pursuant to the Government Order dated 31.1.1987 to by us earlier. Under these circumstances justice would require that some effort to salvage their situation if possible may be made when the State undertakes a fresh exercise of fill up the sanctioned posts under the Tuberculosis Eradication Programme which has come to stay. Consequently we deem it fit to issue the following directions to the respondent State of Bihar in this connection :
       1. Respondent-State of Bihar may start at the earliest a fresh exercise for recruiting Class III and Class IV employees in the Tuberculosis Eradication Programme undertaken by the State as a part of 20-Point Programme on the available 2250 vacancies or even more vacancies, as the case may be, preferably within three months from the receipt of a copy of this order.
       2. Towards the said exercise the State will publish a notice in all the newspaper having circulation in the State inviting applications for direct recruitment to Class III and Class IV posts for filling up these vacancies in the said Programme.
       3. Similarly names may also be called for from the concerned Employment Exchange for such recruitment.
       4. If no statutory body composed of high-ranked officials for recruitment to Class III and Class IV employees is in vogue, the State is directed to constitute a committee consisting of three members. viz., (a) a member of the Public Service Commission; (b) a senior IAS officer i.e., the Additional or Joint Secretary of the Health Department; and (c) a senior officer, i.e., the Director or Additional Director of Health Services, to select the candidates. The Additional or Joint Secretary of Health Department shall be the Chairman of the Committee.
       5. The respondent-State will constitute such a committee preferably within three months of the receipt of this order.
       6. It would be open to all the appellants or those appointed by Dr. Mallick who might not have challenged their termination orders before any competent court uptill now, to apply for selection to the concerned Class III and Class IV posts. The committee would in their cases as first step, verify and satisfy itself of the credentials of such candidates whether they were appointed by Dr. Mallick and had worked at least for three years continuously. The committee would also satisfy itself that such candidate or candidates honestly and meritoriously discharged their duties as Class III and Class IV appointees, at least for the said period.
       7. The committee may fix total number of marks to be obtained by the candidates for being treated to have passed the selection test. Any relaxation in the minimum eligibility marks to be obtained by the Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates as found necessary may also be decided by the committee. The committee if satisfied about the credentials and other particulars of the appellants or those appointed by Dr. Mallick as mentioned in paragraph (6) above, may allot additional marks to them for each of the three years and more for which they might have worked, at the rate of 2 marks for each completed year of continuous working, upto the maximum of 6 marks, for each candidate. Candidates appointed by Dr. Mallick who are found to have undertaken training pursuant to the Government direction dated 31.1.1987 may be awarded 2 additional marks for the training so received. Those 2 marks will be in addition to the 6 marks which are to be awarded on completion of meritorious and honest service by the concerned employees as mentioned above.
       8. If the concerned candidates who were earlier appointed by Dr. Mallick are found by the committee to be otherwise eligible for being appointed to Class III and Class IV posts as per the relevant rules and regulations and if on the basis of the marks allotted to them as aforesaid they become eligible to be appointed besides other competing candidates, then if they are found to have become age barred the condition of age for recruitment of such candidates should be relaxed appropriately so as to entitle such candidates to be considered for selection.
       9. The State Government shall arrange sittings of the Selection Committee preferably within two months from the last date prescribed for submitting the applications and for completion of the preliminary scrutiny of such applications. The committee shall select all candidates on merits following the prescribed procedure in the appropriate circulars and rules and shall also follow the rules of reservation as in vogue and prepare the merit list and should submit it to be Government. While doing so the eligible candidates who were earlier appointed by Dr. Mallick and who received the marks for their past meritorious service and training as aforesaid will be considered for selection qua the other candidates in the light of the weightage of the marks as aforesaid and in that light the committee will select all the candidates on merits and will prepare the select all the candidates found fit to be appointed to the concerned posts.
       10. The committee will complete the process of selection preferably within three months from the date of its sittings for selection.
       11. An appropriate authority or the government, as the case may be, will appoint preferably within three months from the date of the receipt of the merit list from the committee, the selected candidates as per roster and the merit list, on available vacancies, after due identification of the credentials of the candidates concerned as per its legally permissible procedure.
       12. In the event of selection and appointment of erstwhile daily-rated employee or employees, who were inducted by Dr. Mallick, the entire proved period during which they had worked as daily wager and/or confirmed employees will be computed for the purpose of pensionary and other retiral benefits but they will not be entitled to claim any inter se higher seniority in the selection made by the committee or for any promotion on the basis of their previous service. (Para 19)
       (ii) Service Law—Regularisation—Conditions and procedure for. (Para 14)

JUDGMENT

S.B. Majmudar, J.—Leave granted in S.L.P. (C) Nos. 6174 of 1992, 14275 of 1994, 7410 of 1995 and S.L.P. (C) No. 24553 (CC 4638/95).

2. This group of appeals, on grant of special leave to appeal against the common judgment of Patna High Court in CWJC No.5163 of 1993 and batch decided on 6th May 1994, has been placed before this larger Bench by the orders of Hon’ble the Chief Justice on account of difference of opinion between two learned judges of this Court, K. Ramaswamy, J. and Hansaria, J., constituting the Division Bench which earlier heard this group of matters. Before the main points for difference are highlighted and the contentions of respective contesting parties are noted, it would be necessary to note at the outset the backdrop facts leading to these proceedings.

Backdrop Facts.

3. One Dr . A.A. Mallick, Deputy Director, Health Department of the Government of Bihar, was in charge of Tuberculosis for a number of years while he was working as a member of the medical service of the State of Bihar. He was Director of the Tuberculosis Centre at Patna. Eradication of Tuberculosis was taken up as a part of 20-Point Programme in planned expenditure. The activities in the Tuberculosis Centre at Patna were extended to various districts. Since Dr. Mallick happened to be the Director of the Centre, he was made Deputy Director of the Scheme. The Government had also issued directions to the District Medical Officers to abide by the instructions of Dr. Mallick in implementation of the programme. He was made the Chairman of Selection Committee constituted by the Government consisting of himself. Assistant Director of Pilaria and a senior officer representing Schedule Castes/Scheduled Tribes to recruit 2250 Class III and Class IV employees on posts created to implement the Scheme in addition to around 800 to 900 staff in Patna Centre in all categories. Taking advantage thereof, the undisputed fact is that, he appointed around 6000 (as found by the Committee) while the Government asserts them to be approximately 7000. Be that as it may, not less than 6000 persons were appointed by Dr. Mallick without any written orders. He directed many of them to be adjusted by transfer by District Medical Officers and some of them had produced fabricated appointment orders. He shuffled their payment of salaries by turns. Another device adopted in the macabre episode was to make the employees go on strike and when some sensitive M.L.As. raised the question, on the floor of the State Legislative Assembly, of illegal appointments made by Dr. Mallick, the Government initially posed the appointments to be legal and justified his action to be valid. Later, when facts themselves proved their faulty admission, they made amends before the Assembly and the Government made an elaborate statement apprising the House that the information furnished earlier was not correct.

4. Due to the agitation, the Director and Joint Secretary to the Government, Health Department had issued directions to regularise the services of daily-rated Class III and Class IV employees. Taking aid thereof, it is claimed that regularisation of many of them including most of the appellants, was made. When alarming bells rang around portals of Patna High Court by filing petitions under Article 226 of the Constitution seeking payment of salaries, the High Court, though initially in some cases directed to enquire into the cases and to pay salaries, later found it difficult to cope up with the situation. So an Enquiry Committee was constituted to find out whether Enquiry Committee was constituted to find out whether the appointments made by Dr. Mallick were valid and whether salaries could be paid to such employees.

5. In the meanwhile, the Government also directed the Vigilance Department to enquire into the matter and on 7th May 1991, the Vigilance Department in its report pointed out that Dr. Mallick had violated the rules of recruitment and in collusion with other officers had appoi

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1996 Supreme(SC) 2175

IMPORTANT POINTAny posting which is dehors the budgetary grant and on a non-existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised and no right would accrue to the incumbent of such an imaginary or shadow vacancy.

Cases Referred (2)

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IMPORTANT POINT
Any posting which is dehors the budgetary grant and on a non-existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised and no right would accrue to the incumbent of such an imaginary or shadow vacancy.