2010 Supreme(SC) 419

2010 (4) Supreme 11
SUPREME COURT OF INDIA
J.M. Panchal and T.S. Thakur, JJ.
Md. Ashif & Ors. — Appellants
versus
State of Bihar & Ors. — Respondents
Civil Appeal Nos. 4256-4257 2010
(Arising out of S.L.P. (C) Nos.21558-21559 OF 2003)
Decided on : 6-05-2010

IMPORTANT POINTS
1. In cases where the process itself is completely violative of the constitutional scheme underlying public employment and no procedure has been followed while granting such appointments the Court cannot allow such an illegality to continue irrespective of the length of time for which it has continued.
2. Regularization cannot be granted if the same would have the effect of violating Articles 14 and 16 of the Constitution.

Headnote:Service Law-Termination of services of appellants Primary Health Workers, after fifteen years on ground that their promotion/absorption as Primary Health Workers was illegal and contrary to rules-Writ Petitions thereagainst –Allowed by High Court- Letters Patent Appeal-Division Bench held that since the initial appointment of the appellants herein was illegal the very fact that appellants had worked for a long period did not cure that defect so as to justify their reinstatement in service-Appeals –Appointments of appellants as Primary Health Workers were totally illegal and violative of Articles 14 and 16 of Constitution which guarantee equality of opportunity to all those who were otherwise eligible for such appointments- Chief Medical Officer who had made appointments was not vested with the power to do so nor were the claims of other candidates eligible for appointments against the posts to which appellants were appointed, considered-Surprisingly, appointments had come by way of absorption of appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs.50/- only-High Court correctly held that there was no cadre of Voluntary Health Workers who were working on an honorarium in State run dispensaries- The very nature of appointment given to appellants as Voluntary Health Workers was honorary in nature which entitled them to payment of not more than Rs.50/- per month- It was difficult to appreciate how Chief Medical Officer could have regularized/absorbed such Voluntary Health Workers doing honorary service against the post of Primary Health Workers which carried a regular pay-scale and which could be filled only in accordance with the procedure prescribed for that purpose- Appointment of appellants against said posts was thus manifestly illegal and wholly undeserved to say the least- Inasmuch as these appointments came to be cancelled pursuant to said directions no matter nearly a decade and a half later termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed- High Court was, hence justified in declining interference with order of cancellation and dismissing writ petitions-No reason to interfere with order of Division Bench of High Court- Appeals dismissed. (Paras 11, 12)

       Facts of the Case :

       Services of appellants Primary Health Workers were terminated herein in the instant case after fifteen years on ground that their promotion/absorption as Primary Health Workers was illegal and contrary to rules.Writ Petitions thereagainst were Allowed by High Court. On Letters Patent Appeal thereagainst Division Bench held that since the initial appointment of the appellants herein was illegal the very fact that appellants had worked for a long period did not cure that defect so as to justify their reinstatement in service.

       2.Present appeals have been filed against said order of High Court.

       Findings of the Court :

       The Court held that in cases where the process itself is completely violative of the constitutional scheme underlying public employment and no procedure has been followed while granting such appointments the Court cannot allow such an illegality to continue irrespective of the length of time for which it has continued. Appointments of appellants as Primary Health Workers were totally illegal and violative of Articles 14 and 16 of Constitution which guarantee equality of opportunity to all those who were otherwise eligible for such appointments. Chief Medical Officer who had made appointments was not vested with the power to do so nor were the claims of other candidates eligible for appointments against the posts to which appellants were appointed, considered. Surprisingly, appointments had come by way of absorption of appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs.50/- only-High Court correctly held that there was no cadre of Voluntary Health Workers who were working on an honorarium in State run dispensaries. The very nature of appointment given to appellants as Voluntary Health Workers was honorary in nature which entitled them to payment of not more than Rs.50/- per month- It was difficult to appreciate how Chief Medical Officer could have regularized/absorbed such Voluntary Health Workers doing honorary service against the post of Primary Health Workers which carried a regular pay-scale and which could be filled only in accordance with the procedure prescribed for that purpose. Appointment of appellants against said posts was thus manifestly illegal and wholly undeserved to say the least.Inasmuch as these appointments came to be cancelled pursuant to said directions no matter nearly a decade and a half later termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed. High Court was, hence justified in declining interference with order of cancellation and dismissing writ petitions. No reason was found to interfere with order of Division Bench of High Court. Appeals were dismissed.