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2003 Supreme(Pat) 435
PATNA HIGH COURT
Nagendra Rai and R.S.Garg JJ.
State Of Bihar
Versus
Md.Ashif
Letters Patent Appeal No. 33 of 2002 ; 540 of 2002 ;
Decided On : APRIL 16, 2003
An illegal appointment at its inception cannot be legalised by lapse of time, and irregularity cannot be equated to invalidity. Regularisation cannot be used to fill the void created by an illegal appointment.
Headnote:
Illegal Appointments - Health Workers - Ashwini Kumar and Ors. V/s. State of Bihar and Ors., (AIR 1997 SC 1623), State of Madhya Pradesh and Anr. V/s. Dharma Bir, ((1998)6 SCC 165) and Subedar Singh and Ors. V/s. District judge, Mirazpur and Anr., (AIR 2002 SC 201)
Fact of the Case:
The petitioners, who were working as voluntary Health Workers, were appointed as Basic Health workers/Dressers by the Civil Surgeon, which was found to be illegal after an enquiry. The learned single judge quashed the removal orders and directed reinstatement, but the State appealed against this judgment.
Finding of the Court:
The court found that the initial appointments were illegal and could not be regularized, despite the long duration of service by the petitioners. The court disagreed with the learned single judge's observations and held that the writ petitioners were not entitled to any relief.
Issues: The main issue was whether the long duration of service could justify the illegal appointments of the petitioners as Basic Health workers/Dressers.
Ratio Decidendi: The court held that an illegal appointment at its inception cannot be legalised by lapse of time, and irregularity cannot be equated to invalidity. It emphasized that what is illegal at the inception would not become legal by lapse of time, and regularisation cannot be used to fill the void created by an illegal appointment.
Final Decision: Both the Appeals were allowed, the judgments of the learned single judge were set aside, and each of the Writ applications was dismissed.
R.S.Garg, J.
1. This order shall dispose of L.R.A. No. 33/2002 and L.P.A. No. 540/2002.
2. L.P.A. No. 33/2002 arises out of C.W.J.C. No. 11701 of 2001 while L.P.A. No. 540/2002 arises out of C.W.J.C. No. 9024 of 2001.
3. C.W.J.C. No. 11701/2001 was filed by three petitioners. Petitioner Nos. 1 & 2 were working as Basic Health workers while Petitioner No: 3 was working as Dresser. In C.W.J.C. No. 9024/2001, the petitioner was working on the post of Dresser. Each of the petitioners was working in some Government Ausdhalya. All the petitioners were removed under the orders of the Civil Surgeon on different dates.
4. Being aggrieved by their removal they have come to this Court inter alia submitting that they were working from before on fixed honorarium as Voluntary Health Workers but later on under the orders of the Civil Surgeon-cum-Chief Medical Officer on different dates they were appointed against their respective posts. According to the petitioners, the order showed that it was an order of Samvilyan (absorption). Two of the petitioners were appointed as Basic Health workers while the other two were appointed as Dressers. They worked continuously and uninterruptedly for more than 15 years.
5. It appears from the records that under the directions of the Divisional Commissioner some enquiry was made and it revealed that the appointments of the petitioners in the cadre of Basic Health worker/ Dresser was illegal. The enquiry also revealed that there was no cadre of Voluntary Health Worker and there were no provisions for appointment/regularisation of Voluntary Health Workers in the regular establishment. After coming to this conclusion, the authorities issued notices to show cause and after considering the same the orders of removal were passed. Being aggrieved by the said orders, the petitioners came to this Court in Writ Application referred to above.
6. The learned single judge after hearing the parties allowed each of the Writ Applications observing that the appointments/absorptions were illegal but the initial illegality would not cut much ice in the present matter because the appointees have worked for long many years, the learned single judge accordingly quashed the removal orders and directed the concerned authorities to reinstate the petitioners in service. Being aggrieved by the said judgment, the State has filed these two separate Writ Applications.
7. Learned Counsel for the state submitted that the petitioners were working as Voluntary Health Workers and they could not be appointed or absorbed as Basic Health workers/Dressers because neither there was a provision of law nor there was any rule authorising the Civil Surgeon or any other authority to issue such an order. He also submitted, placing reliance on certain judgments of the Supreme Court that if the basic appointment is illegal then such an illegality cannot be regularised. On the other hand, learned Counsel for the employees submitted that the petitioners did not obtain their appointments by playing any fraud or suppressing any fact and even if the Civil Surgeon was not competent to make the appointments then too their long stay in service should provide them some respite. Justifying the judgment of the learned single Judge it was contended that if the illegality was not detected immediately or within a short period then after a long lapse of 15 or 20 years, a person who is now well settled in the life should not be unsettled or disturbed. It was contended by him that question of interference in the writ jurisdiction is a question of discretion and once the discretion is exercised by the learned single judge then the L.P.A. Court but for compelling reasons should not interfere in the matter.
8. True it is that in a case where the appointments are irregular and the irregularity is allowed to perpetuate for long period than an appointee/employee can certainly say that as the appointment was irregular but was not violative of rules or policy and for no
