IMPORTANT POINT
Whether for making appointments, the Selection Board was not constituted in terms required by the Rules, such ad hoc appointments illegally made, cannot stood regularised on enactment of the Validating Act.

Headnote:SERVICE LAW-Orissa Medical Education Service (Appointment of Junior Teachers Validation) Act, 1993-Orissa Medical Health Services (Recruitment and Promotion to Teaching Posts in the Medical Colleges) Rules, 1973-Orissa Medical Education Service (Recruitment) Rules, 1979-Rules 4(2), 3(f)-Validity of Validation Act-Enactment of the Validating Act by which all the 49 Junior Teachers appointed on ad hoc basis were deemed to have been validly and regularly appointed in the service from the date of their appointment-Chief Minister had passed the orders to fill up those posts by ad hoc appointments without constituting a Selection Board under 1979 Rules-Despite 1973 Rules having been repealed, Selection Board appointed on 3.8.1979 under the repealed Rules was allowed to make the selections-In all 49 candidates came to be appointed as Junior Teachers by the Government-Recommendations of the Selection Board constituted under the 1973 Rules, were referred to OPSC-OPSC refused to concur with ad hoc appointments made-Whether such appointments stood regularised on enactment of the Validating Act-(No).
       Held : Clearly, all the appointments were wholly illegal. They were not in accordance with 1979 Rules. The Selection Board was not constituted in terms required by the 1979 Rules which stipulates a member of OPSC to be the Chairman of the Selection Board. The OPSC declined to concur with the illegal appointments. The question is whether such appointments stood regularised on enactment of the Validating Act under consideration. (Para 7)
       It is an admitted position that the provisions of 1979 Rules were not followed and the appointments made in 1980 were after the said Rules had been enforced. It seems that the State Government wanted to bypass the OPSC. The Selection Board comprising of a member of OPSC as its Chairman was never constituted, and the selections were sought to be made by the Board constituted under the 1973 Rules. This, in our opinion, is an illegality which strikes at the root of the appointment and, therefore, it is beyond the scope of the Legislature to validate such illegal appointments as any such attempt would violate Articles 14 and 16 of the Constitution. It may also be noted that the ground that OPSC failed to appoint a member as the Chairman of the Selection Board in accordance with 1979 Rules and in the light of the urgency to fill up the vacancies, the said vacancies were filled up by the Selection Board constituted under the 1973 Rules, does not appear to be correct. The facts on record show a contrary position. By a letter dated 4th September, 1979, the Chairman of the OPSC had offered himself to be the Chairman of the Selection Board but no Selection Board was constituted under the 1979 Rules. A clarification in this regard was sought by OPSC by its letter dated 24th March, 1982 wherein the OPSC had specifically sought for an explanation in regard to the circumstances under which a member of the OPSC was not associated in the Selection Board meetings. (Para 10)
       The purpose of a Validating Act is to remove the cause of ineffectiveness or invalidity. A Validating Act presupposes a positive act, on the part of the legislature, of removing the cause of ineffectiveness or invalidity. In the present case nothing has been done. (Para 23)

JUDGMENT

Y.K. Sabharwal, J.-The present appeal by special leave is directed against the judgment dated 6th August, 2001 passed by the Orissa High Court declining to set aside order of Orissa Administrative Tribunal whereby Orissa Medical Education Service (Appointment of Junior Teachers Validation) Act, 1993 (for short, the Validating Act ) has been declared as ultra vires the Constitution of India. The factual background which gives rise to the present controversy is narrated as follows.

2. On 24th September, 1973, the Orissa Medical Health Services (Recruitment and Promotion to Teaching Posts in the Medical Colleges) Rules, 1973 (hereinafter referred to as the 1973 Rules ) were framed under proviso to Article 309 of the Constitution. These Rules provided that appointment to the posts of Junior Teachers shall be made through a Selection Board by recruitment from amongst the Assistant Surgeons with at least one year s experience as such, in consultation with the Orissa Public Service Commission (hereinafter referred to as OPSC ). Rule 3(f) defined Selection Board to mean a Selection Board appointed by the State Government to select persons for appointment to the Junior or Senior teaching posts and shall consist of the Principals of Medical Colleges in the State and such others as may be nominated by the Government. The 1973 Rules came to be repealed by another set of Rules dated 13th August, 1979 made under proviso to Article 309 of the Constitution, called The Orissa Medical Education Service (Recruitment) Rules, 1979 (for short, 1979 Rules ). Under these Rules, vide sub-rule (2) of Rule 4, minimum qualification of postgraduate degree in the concerned specialty or any other equivalent degree or qualification as prescribed by the Council was provided for appointment of Junior Teachers. Rule 3(f) provided that Selection Board was to be constituted with member of the OPSC as its Chairman. The Secretary to Government in the Health and Family Welfare Department, DHET and Principals of the Medical Colleges were to be its members. On 20th September, 1979, the Director of Medical Education and Training (DMET) issued advertisement-inviting applications from eligible candidates for appointment as Junior Teachers in various disciplines/specialities. The Selection Board as per 1979 was, however, never constituted. According to Government, as many posts of Junior Teachers remained vacant for long time, the Chief Minister passed orders on 27th January, 1980 to fill up those posts by ad hoc appointments without constituting a Selection Board under 1979 Rules. Despite 1973 Rules having been repealed, the Selection Board appointed on 3rd August, 1979 under the repealed Rules was allowed to make the selections. After obtaining orders of the Chief Minister on 4th August, 1980, orders were issued by the State Government to the selected candidates appointing them as Junior Teachers on ad hoc basis. Some appointments were also made on 11th November, 1980. In all, 49 candidates came to be appointed as Junior Teachers on ad hoc basis by the Government. On 9th February, 1982, the recommendations of the Selection Board constituted under the 1973 Rules, were referred to the OPSC along with the entire list of 145 candidates who had applied for the post pursuant to the advertisement dated 20th September, 1979. The OPSC refused to concur with the ad hoc appointments of these 49 Junior Teachers. This led to the enactment of the Validating Act by which all the 49 Junior teachers appointed on ad hoc basis by the Government were deemed to have been validly and regularly appointed in the service from the date of their appointment as such.

3. The Administrative Tribunal by its order dated 30th November, 1998 declared the Validating Act ultra vires and inoperative. The decision of the Tribual has been upheld by the Division Bench of the Orissa High Court by the impugned judgment.

4. In the aforenoticed background, primary issue which comes up for our consider

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2004 Supreme(SC) 1104

IMPORTANT POINTWhether for making appointments, the Selection Board was not constituted in terms required by the Rules, such ad hoc appointments illegally made, cannot stood regularised on enactment of the Validating Act.

Cases Referred (11)

IMPORTANT POINT
Whether for making appointments, the Selection Board was not constituted in terms required by the Rules, such ad hoc appointments illegally made, cannot stood regularised on enactment of the Validating Act.