Service Law; State Vs. Arun Kumar Mishra [Jharkhand High Court, 25-08-2016]

Service Law – State Service – Back Door Entry – Appointment on a temporary or ad hoc basis – Writ Petition for Regularization and seeking Age Relaxation – Such type of back-door entrant cannot be given any relief by the State of Jharkhand, otherwise, it will lead further chaos in the State of Jharkhand. Such type of back-door entrant must be forthwith removed from service, so that in a public employment, properly selected candidates can be appointed on merits. It has become fashion in “the State” within the meaning of Article 12 of the Constitution of India to appoint such type of back-door entrants. It is now high time for “the State” to initiate action against those persons who have given them appointment. In taking action against those administrative officers who are giving such type of illegal appointment, the State of Jharkhand has consistently failed. These aspects of the matter have not been properly appreciated by the learned Single Judge.


IN THE HIGH COURT OF JHARKHAND AT RANCHI

CORAM: HON’BLE MR. JUSTICE D. N. PATEL AND HON’BLE MR. JUSTICE AMITAV K. GUPTA

L.P.A. No. 314 of 2014 With I.A. Nos.4429/2014 & 4430/2014

25th July, 2016

1. The State of Jharkhand through the Deputy Commissioner, Pakur 2. The Deputy Commissioner, Pakur

… … … … … … Appellants

Versus

1. Arun Kumar Mishra, S/o Sri Krishna Prasad Mishra, R/o Village & P.O.- Fuljhinjhari,m P.S. Pakuria, Distt- Pakur 2. The Block Development Officer, Pakuria, District – Pakur 3. The Chief Medical officer, Pakur 4. The In-charge Medical Officer, Primary Health Centre, Pakuria, District – Pakur.

… … … … … … Respondents —— —–

For the Appellant: M/s. Kumar Sundaram, J.C. to A.A.G. For the Respondent no.1: M/s. Someshwar Roy

Oral Judgment

Per D.N. Patel, J.

I.A. No.4429 of 2014

1) This interlocutory application under Section 5 of the Limitation Act has been filed by the appellant for condonation of delay of 275 days in preferring the instant appeal.

2) Having heard learned counsel and looking to the reasons stated in paragraphs 4, 5 and 6 of the interlocutory application, there are reasonable reasons for condoning the delay in preferring the appeal.

3) Accordingly, I.A. No. 4429 of 2014 is allowed and delay in filing the instant appeal is condoned. L.P.A. No.314 of 2014

4) This Letters Patent Appeal has been preferred by the original respondent No.1 in W.P. (S) No. 1381 of 2013, as, the writ petition was preferred by the present respondent No.1 seeking regularization in the services of the State of Jharkhand and for age relaxation pursuant to advertisement in the year 2010 and the age relaxation has been granted by the learned Single Judge by an order dated 22.10.2013 and, hence, 2 L.P.A. No.314 of 2014 the present Letters Patent Appeal has been preferred by the original respondent No.1-State of Jharkhand.

5) Counsel for the appellant-State of Jharkhand submitted that the respondent (original petitioner) was appointed on 27th June, 1998 as Voluntary Health Worker in Primary health Centre, Pakuria, District – Pakur. He was appointed as Voluntary Worker on an honorarium of Rs.50/- per month to be paid to this respondent (original petitioner) looking to Annexure 7 of this Letters Patent Appeal. Thus, the respondent was never appointed against any permanent post, nor he was given any pay scale, nor he was daily-rated worker, nor he was a casual worker, but, only he was a Voluntary Health Worker and that too, on an honorarium of Rs.50/- per monthly only. There was no advertisement and no selection process was ever followed for the so-called appointment of the respondent (original petitioner). It was absolutely a back-door entrance. Counsel for the appellant further submitted that he worked only upto 28th February, 2002, as stated in the counter affidavit paragraph 7 filed by the appellant-State. Thereafter, advertisement was given in the year 2010 and a priority was given to Class-III and Class-IV employees who were appointed as daily-rated workers, but, this respondent (original petitioner) was not covered by the said clause for whom age relaxation was to be given. This matter has not been properly appreciated by the learned Single Judge and, hence, the judgment and order dated 22.10.2013 delivered by the learned Single Judge in W.P. (S) No.1381 of 2013 deserves to be quashed and set aside.

6) Counsel for the respondent (original petitioner) submitted that in fact this respondent was appointed as per the appointment letter at Annexure 1 dated 27th June, 1998. Thereafter, he worked for several years and, therefore, no error has been committed by the learned Single Judge in granting age relaxation for the advertisement published in the year 2010. It is also submitted by the counsel for the respondent that similarly situated another person Fransis Soren was appointed as Driver in the year 2005 and, he was given age relaxation. This aspect of the matter has also been properly appreciated by the learned Single Judge and, hence, this Court may not interfere in the order passed by learned Single Judge and this Letters Patent Appeal may not be entertained by this Court.

# REASONS

7) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the judgment and order delivered by learned Single Judge in W.P. (S) No.1381 of 2013 order dated 22nd October, 2013 mainly for the following facts and reasons: –

(i) The respondent is original petitioner in W.P. (S) No.1381 of 2013 who preferred the writ petition for regularization and seeking age relaxation in the advertisement of the year 2010.

(ii) It appears from the facts of the case that the respondent was appointed as Voluntary Health Worker on 27th June, 1998 at Primary Health Centre, Pakuria (District Pakur). He was to be paid Rs.50/- as honorarium per month. He worked, only for the period running from 27.06.1998 to 28.02.2002.

(iii) Thus, it appears that the respondent was never appointed in pursuance of any public advertisement, nor on any substantive post, nor on any pay scale and absolutely he is a back-door entrant. Even otherwise also, looking to his appointment letter at Annexure 1, the respondent (original petitioner) was never an employee in a regular course of the appellant-State of Jharkhand.

(iv) It further appears from the counter affidavit filed by the appellant-State in the writ petition, looking to paragraph 7 which reads as under: –

“7. That it is stated and submitted that the Petitioner worked as Voluntary Worker till 28.02.2002 at Primary Health Centre, Pakuria and against the said work the stipulated remuneration was given to him, which will be evident from Bill No.163 and Bill No.144. A photocopy of the Bill No.163 and Bill No.144 is being annexed herewith and marked as Annexure-B.”

(v) In view of the aforesaid facts, it appears that the respondent (original petitioner) has worked as Voluntary Health Worker on an honorarium of Rs.50/ – per month only upto 28th February, 2002 and nothing beyond that.

(vi) It further appears from the facts of the case that there was an advertisement given in the year 2010 in which age relaxation was to be given to Class-III and Class-IV employees who were appointed as daily-rated workers. As this respondent (original petitioner) was not working as on date of advertisement, no age relaxation can be granted to him. This aspect of the matter has also not been properly appreciated by the learned Single Judge.

(vii) Moreover, it appears that the respondent was never appointed as a Daily-rated Worker even. He was not daily-rated worker as on the date of advertisement. The respondent was never appointed in pursuance of any public advertisement. The respondent was not appointed on any post of the State of Jharkhand which was to be filled up on regular basis. Thus, absolutely as Voluntary Health Worker he was on honorarium of Rs.50/- per month, that too he worked from 27th June, 1998 till 28th February, 2002. Such type of back-door entrant cannot be given any relief by the State of Jharkhand, otherwise, it will lead further chaos in the State of Jharkhand. Such type of back-door entrant must be forthwith removed from service, so that in a public employment, properly selected candidates can be appointed on merits. It has become fashion in “the State” within the meaning of Article 12 of the Constitution of India to appoint such type of back-door entrants. It is now high time for “the State” to initiate action against those persons who have given them appointment. In taking action against those administrative officers who are giving such type of illegal appointment, the State of Jharkhand has consistently failed. These aspects of the matter have not been properly appreciated by the learned Single Judge.

(viii) It has been held by Hon’ble Supreme Court in the case of

# State of Bihar v. Chandreshwar Pathak reported in (2014) 13 SCC 232

in paragraphs 10, 11, 12 and 13 as under: –

“10. The order of appointment, in the present case, is as follows:

“In the light of the order passed by the Inspector General of Police, Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86 F3 Shri Chandeshwar Pathak, s/o Shri Devnarayam Pathak of Village Haraji, PO Haraji, PS Dimbara, District Chhapra was appointed as Constable temporarily from 14-1-1988 afternoon on the condition that his previous character found satisfactory and as and when necessary, his service shall be terminated without assigning any reason or show cause. His pay scale shall be Rs 425-10,565 EB- 10-605 with the basic pay of Rs 425. He has been allotted CT No. 390.”

It is clear from the above order that the appointment has been given only on the asking of the Inspector General of Police. There is nothing to show that any advertisement was issued giving opportunity to all eligible candidates to compete or any selection process was undertaken before appointment of the respondent.

11. In State of Orissa v. Mamata Mohanty, it was observed as under: (SCC pp. 451-52, paras 35-36) “Appointment/employment without advertisement

35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees’ Union v. Delhi Admn., State of Haryana v. Piara Singh, Excise Supt. v. K.B.N. Visweshwara Rao, Arun Tewari v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Deptt. of Telecommunications v. Keshab Deb, State of Bihar v. Upendra Narayan Singhand State of M.P. v. Mohd. Abrahim.)

36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.”

12. No contrary view of this Court has been cited on behalf of the respondent. Moreover, another Division Bench of the same High Court has upheld termination in similar matter as noted earlier against which SLP has been dismissed by this Court as mentioned earlier.

13. Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned Single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same.”

(Emphasis supplied)

(ix) It has been held by Hon’ble Supreme Court in the case of reported in

# Mohd. Ashif Vs. State of Bihar in paragraphs (2010) 5 SCC 475

in paragraphs 13 and 14 as under: –

“13. Applying the test laid down by this Court in Umadevi (3) case and the cases referred to above, to the case at hand, there is no gainsaying that the appointments of the appellants as Primary Health Workers were totally illegal and violative of Articles 14 and 16 of the Constitution which guarantee equality of opportunity to all those who were otherwise eligible for such appointments. The Chief Medical Officer who had made the 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 the appellants were appointed, considered. Surprisingly, the appointments had come by way of absorption of the appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs 50 only.

14. The High Court has, in our opinion, 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 the appointment given to the appellants as Voluntary Health Workers was honorary in nature which entitled them to the payment of not more than Rs 50 per month. It is difficult to appreciate how the Chief Medical Officer could have regularised/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. The appointment of the appellants against the said posts was thus manifestly illegal and wholly undeserved to say the least. Inasmuch as these appointments came to be cancelled pursuant to the said directions no matter nearly a decade and a half later the termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed. The High Court was, in that view of the matter, justified in declining interference with the order of cancellation and dismissing the writ petitions.”

(Emphassis supplied)

(x) It has been held by Hon’ble Supreme Court in the case of

# Renu Vs. District & Sessions Judge reported in (2014) 14 SCC 50

in paragraphs 6 to 13 as under: –

“6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution.

7. In I.R. Coelho v. State of T.N., the doctrine of basic features has been explained by this Court as under: (SCC p. 108, para 141)

“141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.”

8. As Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees’ Union v. Delhi Admn., State of Haryana v. Piara Singh, Prabhat Kumar Sharma v. State of U.P., J.A.S. Inter College v. State of U.P., M.P. Housing Board v. Manoj Shrivastava, M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey and State of M.P. v. Sandhya Tomar.

9. In Excise Supt. v. K.B.N. Visweshwara Rao, a larger Bench of this Court reconsidered its earlier judgment in Union of India v. N. Hargopal, wherein it had been held that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. However, due to the possibility of non-sponsoring of names by the employment exchange, this Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the Constitution and even if the names of candidates are requisitioned from employment exchange, in addition thereto, it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the employment exchange does not meet the requirement of the said articles of the Constitution. The Court further observed: (K.B.N. Visweshwara Rao case, SCC p. 218 para 6)

“6. … In addition, the appropriate department … should call for the names by publication in the newspapers having wider circulation and also display on their office notice … and employment news bulletins; and then consider the cases of all candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates.”

(emphasis supplied)

(See also Arun Tewari v. Zila Mansavi Shikshak Sangh and Kishore K. Pati v. District Inspector of Schools, Midnapore.)

10. In Suresh Kumar v. State of Haryana this Court upheld the judgment of the Punjab and Haryana High Court wherein 1600 appointments made in the Police Department without advertisement stood quashed though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.

11. In UPSC v. Girish Jayanti Lal Vaghela this Court held: (SCC p. 490, para 12)

“12. … The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made … Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.”

(emphasis supplied)

12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav as under: (SCC pp. 274-75, para 24)

“(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.

(2) Regularisation cannot be a mode of appointment.

(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.

(4) Those who come by back door should go through that door.

(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162of the Constitution of India if the appointments have been made in contravention of the statutory rules.

(6) The court should not exercise its jurisdiction on misplaced sympathy.

(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.

(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.”

13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3), observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. “Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.” The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.”

(Emphassis supplied)

8) As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we, hereby, quash and set aside the judgment and order delivered by learned Single Judge in W.P. (S) No.1381 of 2013 order dated 22nd October, 2013. This Letters Patent Appeal is, accordingly, allowed.

9) In view of the final order passed in the Letters Patent Appeal,I.A. No.4430 of 2014 also stands disposed of.

Comments