1. Appointment of employees without proper recruitment process — termination following discovery of irregularities and forged documents — challenge to termination and claim for regularization. (Para 5 , 7 )
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2018 Supreme(SC) 1187
SUPREME COURT OF INDIA
MADAN B. LOKUR, S. ABDUL NAZEER, DEEPAK GUPTA, JJ.
THE STATE OF BIHAR AND ORS. – APPELLANTS
VERSUS
KIRTI NARAYAN PRASAD – RESPONDENT
CIVIL APPEAL NO. 8649 OF 2018 (Arising out of S.L.P. (Civil) No.24742 of 2012) WITH CIVIL APPEAL NOS. 8650 OF 2018 (Arising out of S.L.P. (Civil) No.24744 of 2012) CIVIL APPEAL NO. 8651 OF 2018 (Arising out of S.L.P. (Civil) No.11887 of 2012) CIVIL APPEAL NO. 8652 OF 2018 (Arising out of S.L.P. (Civil) No.24743 of 2012) CIVIL APPEAL NO. 8654 OF 2018 (Arising out of S.L.P. (Civil) No.24745 of 2012) CIVIL APPEAL NO. 8655 OF 2018 (Arising out of S.L.P. (Civil) No.24748 of 2012) CIVIL APPEAL NO. 8656 OF 2018 (Arising out of S.L.P. (Civil) No.155 of 2014) CIVIL APPEAL NO.8657 OF 2018 (Arising out of S.L.P. (Civil) No.160 of 2014) CIVIL APPEAL NO. 8658 OF 2018 (Arising out of S.L.P. (Civil) No.161 of 2014) CIVIL APPEAL NO. 8659 OF 2018 (Arising out of S.L.P. (Civil) No.150 of 2014) CIVIL APPEAL NO.8660 OF 2018 (Arising out of S.L.P. (Civil) No.162 of 2014) CIVIL APPEAL NO.8661 OF 2018 (Arising out of S.L.P. (Civil) No.2190 of 2014) CIVIL APPEAL NO.8662 OF 2018 (Arising out of S.L.P. (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.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.L.P. (Civil) No.32614 of 2014) CIVIL APPEAL NO.8691 OF 2018 (Arising out of S.L.P. (Civil) No.33051 of 2014) CIVIL APPEAL NO.8692 OF 2018 (Arising out of S.L.P. (Civil) No.67 of 2015) CIVIL APPEAL NO.8693OF 2018 (Arising out of S.L.P. (Civil) No.34280 of 2014) CIVIL APPEAL NO.8696 OF 2018 (Arising out of S.L.P. (Civil) No.36513 of 2014) CIVIL APPEAL NO.8697 OF 2018 (Arising out of S.L.P. (Civil) No.2930 of 2015) CIVIL APPEAL NO.8698 OF 2018 (Arising out of S.L.P. (Civil) No.2914 of 2015) CIVIL APPEAL NO. 8699 OF 2018 (Arising out of S.L.P. (Civil) No.3352 of 2015) CIVIL APPEAL NO.8700 OF 2018 (Arising out of S.L.P. (Civil) No.7569 of 2015) CIVIL APPEAL NO.8683 OF 2018 (Arising out of S.L.P. (Civil) No.32590 of 2014) CIVIL APPEAL NO.8701 OF 2018 (Arising out of S.L.P. (Civil) No.7564 of 2015) CIVIL APPEAL NO.8702 OF 2018 (Arising out of S.L.P. (Civil) No.20582 of 2015) CIVIL APPEAL NO.8703 OF 2018 (Arising out of S.L.P. (Civil) No.5964 of 2015) CIVIL APPEAL NO.8704 OF 2018 (Arising out of S.L.P. (Civil) No.8229 of 2015) CIVIL APPEAL NO.8705 OF 2018 (Arising out of S.L.P. (Civil) No.18198 of 2015)_ CIVIL APPEAL NO.8706 OF 2018 (Arising out of S.L.P. (Civil) No.24518 of 2015) CIVIL APPEAL NO.8707 OF 2018 (Arising out of S.L.P. (Civil) No.25895 of 2015) CIVIL APPEAL NOS.10049-10054 OF 2018 (Arising out of S.L.P. (Civil) Nos.28728-28729 of 2017)
Decided On : 30-11-2018
Important Points
Regularization under the Umadevi judgment applies only to 'irregular' appointments of qualified persons in sanctioned posts. 'Illegal' appointments, including those involving forged documents or incompetent authorities, are void ab initio and cannot be regularized, regardless of the length of service.
Subject
Employment Law - Regularization of Illegal Appointments
Act Referred
Headnote
(a) Service law – Appointment – Void ab initio being obtained on forged/false/surreptitious documents – Umadevi(3) does not apply – Petition for regularization rightly dismissed. (Para 17)
(2006) 4 SCC 1; (2010) 9 SCC 247; (2011) 3 SCC 436 – Relied upon
2006 (3) PLJR 386 – Cited with approval
(b) Constitution of India – Article 311 – Natural justice – Persons whose appointment was void ab initio – Not civil servants – Article 311 does not apply for termination of their services. (Para 17)
Facts of the case:
Some of the appeals in this group of matters have 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.
In the other connected matters, the Division Bench of the Patna High Court has allowed the LPAs and the writ petitions filed by the petitioners therein have been dismissed holding their appointment as non est and void ab initio.
Finding of the Court:
Appointments void ab initio cannot be regularized.
Result: Civil Appeals filed by the writ petitioners in the aforesaid batch of appeals dismissed. Civil Appeals filed by the State of Bihar allowed.
Legal Category Hierarchy
Table of Contents
2. State contends appointments were illegal and void ab initio; employees argue long service and qualifications entitle them to regularization under established precedents. (Para 9 , 10 )
3. Appointments made without following prescribed recruitment circulars and based on forged documents are illegal and void ab initio, precluding regularization or protection under Article 311. (Para 12 , 17 )
4. Only irregular appointments—not illegal ones—of qualified persons in sanctioned posts for ten years or more may be regularized as a one-time measure. (Para 14 , 15 )
5. Appeals by employees dismissed and appeals by the State allowed; termination of illegal appointments upheld. (Para 18 )
6. What is the legal distinction between illegal and irregular appointments for the purpose of regularization?
Illegal appointments occur when the appointee lacks prescribed minimum qualifications or is not appointed against a sanctioned post. Irregular appointments occur when a qualified person is appointed to a sanctioned post but without undergoing the process of open competitive selection. (Para 15 )
7. Can an appointment that is void ab initio be regularized based on long service?
No. If an order of appointment is bad at the initial stage or void ab initio, it cannot be sanctified or regularized at a later stage, regardless of the duration of service. (Para 16 , 17 )
8. Does the protection of Article 311 of the Constitution apply to employees whose appointments are void ab initio?
No. Since persons whose appointments are void ab initio cannot be considered civil servants of the State, the requirement to hold disciplinary proceedings under Article 311 or other disciplinary rules does not arise. (Para 17 )
9. What is the general rule regarding the regularization of temporary or casual employees in public employment?
Unless an appointment is made according to relevant rules and after proper competition among qualified persons, it confers no right to regularization. Mere continuance beyond the term of appointment does not entitle an employee to be absorbed into regular service. (Para 13 )
JUDGMENT
S.ABDUL NAZEER, J.
1. Some of the appeals out of the aforesaid group of matters have 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 order issued against the writ petitioners cannot be said to be legal. Accordingly, LPAs have been dismissed. These orders have also been challenged by the State of Bihar in this group of appeals.
2. In the other connected matters, the Division Bench of the Patna High Court has allowed the LPAs and the writ petitions filed by the petitioners therein have been dismissed holding their appointment as non est and void ab initio.
3. Since a common issue has been raised in all these appeals, they are disposed of by this common judgment.
4. The facts of the cases in brief are as under:
5. The writ petitioners had joined the service of State of Bihar under the orders made by the concerned Civil Surgeon-cum-Chief Medical Officer of the district. None of the writ petitioners was appointed through a proper legal recruitment process. They were posted in Class III or Class IV service in a primary health centre within the jurisdiction of the civil surgeon. The State Government having realised the large scale irregularities committed in the appointment by the concerned Civil Surgeon-cum-Chief Medical Officer, scrutinized all the appointments. The State Government having found that large number of appointments were made on the basis of false or forged documents, without following due process of recruitment and mostly without the appointment orders, cancelled such appointments and the concerned incumbents were discharged from service. Those orders of discharge were challenged before the Patna High Court. The High Court by a common judgment and order set aside the impugned orders of discharge from service solely on the ground of violation of the principles of natural justice. All the writ petitioners were directed to be reinstated in service without the salary or remuneration for the interregnum period.
6. Thereafter, the State Government initiated proceedings to terminate the services of such employees by issuing show cause notice and calling upon each of them to establish legality of their respective appointment. The writ petitioners failed to establish the legality of their appointment. Once again their services were terminated. Feeling aggrieved, the writ petitioners challenged the said orders before the High Court, which eventually reached the Division Bench in Letter Patent Appeals. The Division Bench noticed that the writ petitioners were appointed in Class III or Class 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 w
