2009 Supreme(SC) 523

2009(2) Supreme 672
SUPREME COURT OF INDIA
Markandey Katju and G.S. Singhvi, JJ.
State of Bihar — Appellant
versus
Upendra Narayan Singh & others — Respondents
Civil Appeal No. 1741 of 2009
(Arising out of S.L.P. (C) 16871 of 2007)
Decided on : 20-03-2009

IMPORTANT POINTS
If the initial appointments are found to be illegal per se, direction for reinstatement with consequential benefits cannot be approved.
The guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner.

Headnote:(a) Constitution of India,1950 – Articles 14 and 16 – The basic principle which informs both Articles 14 and 16 is equality and inhibition against discrimination – Equality is a founding faith, a way of life – It must not be subjected to a narrow pedantic or lexicographic approach. (Para 12)

        (1974) 4 SCC 3 – Relied upon.

        (b) Constitution of India,1950 – Article 16 – The equality clause mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit. (Para 13)

        (1994) 4 SCC 138; (2006) 2 SCC 482; (2007) 5 SCC 65; (2008) 2 SCC 758 – Relied upon.

        (c) Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 – Section 4 – A duty is cast on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same – Insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. (Para 14 and 16)

        (1987) 3 SCC 308; (1996) 6 SCC 216; (2006) 8 SCC 111 – Relied upon.

        (d) Service Law – Ad hoc appointment and regularisation – Supreme Court has consistently held that appointment to the public posts should ordinarily be made by regular recruitment through the prescribed agency – Even where ad hoc or temporary employment is necessitated on account of the exigencies of administration, the candidate should be drawn from the employment exchange and that if no candidate is available or sponsored by the employment exchange, some method consistent with the requirements of Article 14 of the Constitution should be followed – The legal view has, however, changed over the years from permissive to strict compliance of rules – From allowing regularisation of appointment only on the ground of long spell of service, the view that regularisation is not and cannot be a mode of recruitment has come to stay. (Para 21 to 26)

        (1992) 4 SCC 118; (1992) 4 SCC 99; (1994) 2 SCC 204; (1992) 4 SCC 33; (1993) 2 SCC 213; (1994) 2 SCC 630; 1994 Suppl. (3) SCC 380; (1996) 7 SCC 134; (1996) 7 SCC 481; (1996) 7 SCC 499; (1996) 7 SCC 562; (1996) 9 SCC 619; (1996) 10 SCC 565; (1996)11 SCC 341; (1997)1 SCC 245; (1997)1 SCC 350; (1997)2 SCC 1; (1997) 2 SCC 713; (1997) 4 SCC 88; (1997) 7 SCC 198; (2005) 5 SCC 122; (2004) 7 SCC 112; (2006)4 SCC 1 – Relied upon.

        (e) Service Law – Regularisation – If the initial appointments are found to be illegal per se, direction for reinstatement with consequential benefits cannot be approved. (Para 31)

        (f) Constitution of India,.1950 – Article 14 – Well settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner – If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing wrong order. (Para 34)

        (1995) 1 SCC 745; (1997) 1 SCC 35; (1996) 2 SCC 258; (1996) 2 SCC 459; (1997) 1 SCC 35; (1997) 7 SCC 752; (1999) 7 SCC 89; (2000) 9 SCC 94; (2003) 5 SCC 437; (2007) 4 SCC 737 – Relied upon.

       Facts of the case :

        1. Government of Bihar vide its Circular No.7260 dated 27.4.1979 which was followed by another Circular No.3001 dated 16.3.1982 imposed ban on ad hoc appointments. Notwithstanding this, ad hoc appointments continued to be made in violation of the rules and relevant instructions. This compelled the State Government to pass order dated 10.3.1985 for cancellation of ad hoc appointments and for filling the vacancies in accordance with the rules. Chief Secretary, Government of Bihar vide his letter dated 11.6.1986 made it clear to all the Secretaries to the Government, Heads of Departments, Divisional Commissioners and District Magistrates that they will be personally responsible for the compliance of the rules and instructions in the making of ad hoc appointments.

        2. Vide letter dated 4.7.1987, Under Secretary to the Government informed the Director, Animal Husbandry that for implementation of the schemes being operated by the department, appointments may be made on Class IV posts by prescribed committees.

        3. By taking advantage a number of appointments were made on Class III and Class IV posts in Gaya without following any procedure. The respondents were also beneficiaries. They were appointed as Class IV employees on 9.10.1991.

        4. After an inquiry conducted into the appointments made by the then Regional Director, Animal Husbandry, Gaya, notices dated 3.5.2001 were issued to the respondents requiring them to show cause against the proposed termination of their services. The competent authority passed orders dated 23.5.2001 terminating the services of the respondents, who challenged the same by filing a writ petition.

        5. The learned Single Judge relied upon the order passed in CWJC No.5140 of 1998 and quashed the termination of the respondents’ services with a direction that they be reinstated with consequential benefits. Letters Patent Appeal filed by the appellant was dismissed by the Division Bench.

       Finding of the Court :

        The initial appointments of the respondents were made in gross violation of the doctrine of equality enshrined in Articles 14 and 16 and the provisions of the 1959 Act and the learned Single Judge gravely erred by directing their reinstatement with consequential benefits.

       Result : Appeal allowed.