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Saturday, August 9, 2014

Service Matter - Back Door Posting - Temporarily appointed to the post of constable - show cause notice issued and service was also terminated - single judge dismissed the writ - DB allowed the writ - Apex court held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. Learned single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same. =CIVIL APPEAL NO._7392___2014 (Arising out of SLP (C) No.28971 of 2013) State of Bihar and Ors. ... Appellant (s) Versus Chandreshwar Pathak ... Respondent (s) = 2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41813

   Service Matter - Back Door Posting - Temporarily appointed to the post of constable - show cause notice issued and service was also terminated - single judge dismissed the writ - DB allowed the writ - Apex court held that in  the  absence  of   any advertisement or selection process, the appointment  of  the  respondent  is not protected and could be validly terminated.   Learned  single  Judge  was justified in dismissing the writ petition while the Division Bench erred  in interfering with the same. =

The respondent was temporarily appointed to the post of  constable  by
the Inspector General of Police, Criminal Investigation  Department,  Patna,
Bihar, vide his  order  dated  14.01.1988  with  the  stipulation  that  his
service could be terminated without assigning any reason or show cause.   In
the year 2000, the High Court of Patna  considered  the  issue  of  backdoor
appointments made in the police department in another case which  led  to  a
direction by the Department of Home  (Police),  Government  of  Bihar  dated
04.09.2000  to  the  Police   Headquarter,   Bihar   to   review   irregular
appointments and to remove such appointees from service.

4.    Accordingly, a show cause notice dated 10.09.2003 was  issued  to  the
respondent-writ petitioner asking him why  his  appointment  should  not  be
cancelled and since no valid reason was shown  in  his  reply,  order  dated
26.09.2003 was passed terminating the services of the respondent.=

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  notice  board
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.”
  
  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.   Learned  single  Judge  was
justified in dismissing the writ petition while the Division Bench erred  in
interfering with the same.

17.    Accordingly,  we  allow  this  appeal,  set  aside  the  order  dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No.  945
of 2010  and restore the  order  dated  09.04.2010  passed  by  the  learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.

2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41813

                                                          REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO._7392___2014
                  (Arising out of SLP (C) No.28971 of 2013)



State of Bihar and Ors.                            ...   Appellant (s)

                                   Versus

Chandreshwar Pathak                          ...   Respondent (s)


                               J U D G M E N T


Adarsh Kumar Goel, J.

1.    Leave granted.

2.    This appeal has been preferred by  the  State  of  Bihar  against  the
order  dated  05.01.2012  of  the  Division  Bench  of  the  High  Court  of
Judicature at Patna in L.P.A. No.945  of  2010,  which  has  the  effect  of
quashing the order dated 26.09.2003 passed by the of Criminal  Investigation
Department,  Patna,  Bihar,  terminating  the  services  of  the  respondent
herein.

3.    The respondent was temporarily appointed to the post of  constable  by
the Inspector General of Police, Criminal Investigation  Department,  Patna,
Bihar, vide his  order  dated  14.01.1988  with  the  stipulation  that  his
service could be terminated without assigning any reason or show cause.   In
the year 2000, the High Court of Patna  considered  the  issue  of  backdoor
appointments made in the police department in another case which  led  to  a
direction by the Department of Home  (Police),  Government  of  Bihar  dated
04.09.2000  to  the  Police   Headquarter,   Bihar   to   review   irregular
appointments and to remove such appointees from service.

4.    Accordingly, a show cause notice dated 10.09.2003 was  issued  to  the
respondent-writ petitioner asking him why  his  appointment  should  not  be
cancelled and since no valid reason was shown  in  his  reply,  order  dated
26.09.2003 was passed terminating the services of the respondent.

5.    Challenging the above order, the respondent herein  preferred  a  writ
petition before the High Court of Patna which was heard by a learned  single
Judge.  By order dated 09.04.2010, the learned single  Judge  dismissed  the
writ petition with the following observations:

“This Court is not satisfied that the petitioner has made  out  a  case  for
interference with the order of  termination  from  what  appears  to  be  an
illegal appointment based on the spoils systems.

Apart from the illegal entry into services, the  alleged  regularisation  is
of no avail to him as it is apparently  a  single  case  considered  without
others to dole out an individual benefit.

The submission that he had served for 16  long  years  and,  therefore,  his
case should be considered sympathetically does not appeal to this Court.

The petitioner must perish by the same sword by which he came.

Reliance of the petitioner on  an  order  of  this  Court  in  C.W.J.C.  No.
5279/04 interfering with a similar order of termination on the  ground  that
it had been passed after 15 years is best answered by the  judgment  of  the
Supreme Court in (2005) 4 SSC 209 (Bind Kumar Gupta vs. Ram Ashray Mahato  &
Ors.) where the Supreme  Court  declined  to  interfere  with  an  order  of
termination passed after  15  years  of  service,  in  case  of  an  illegal
appointment.”


However, on appeal, the Division Bench allowed the writ  petition  following
an earlier order dated 18.05.2005 in another case, i.e., C.W.J.C.  No.  5279
of 2004 filed by one of the similarly placed employee.

6.    We have heard Mr. Gopal Singh, learned counsel for the State of  Bihar
and Mr. Manoj R. Sinha, learned counsel for the respondent.

7.    Learned counsel for the appellant submitted that  the  Division  Bench
erroneously followed the judgment in C.W.J.C. No. 5279  of  2004  which  was
distinguishable as therein no show cause notice  was  issued  while  in  the
present case, a show  cause  notice  was  duly  issued  to  the  respondent.
Referring to the order of appointment, it was  submitted  that  the  present
was a case of backdoor appointment without any  advertisement  or  selection
process.  It was also pointed out that another Division Bench  of  the  same
High Court in Hemkant Jha etc. etc.  vs. The State of Bihar &  Ors.  (L.P.A.
No. 625 of 2003 etc.etc.  decided  on  18.7.2007)  dealt  with  a  group  of
identical matters, on remand  by  this  Court,  and  upheld  termination  of
services of police constables appointed without any selection.  Therein,  it
was observed:

“6. On going through the impugned judgments,  the  relevant  facts  and  the
judgment in the case of Sudhir Kumar, it is found that on  facts,  there  is
no meaningful and serious challenge to the  relevant  facts  that  concerned
employees in these matters have been appointed  on  the  post  of  Constable
without any advertisement and without following  procedure  of  appointment.
No general or order or regulation of the State Government  is  available  to
support the contention  that  appointment  of  the  appellants  is  akin  to
compassionate appointment for which the State Government has taken a  policy
decision and prescribed rules.  In facts, there is no controversy  or  issue
in these matters because on admitted facts it is clear that the  appointment
of the appellants on the post of Constable  were  made  through  a  backdoor
method in complete disregard of  procedure  for  appointment  laid  down  in
relevant rules in the Police  Manual  and  in  violation  of  constitutional
mandate of equality in public employment.   The  State  has  rightly  relied
upon various judgments including that of a Constitution Bench  of  the  Apex
Court in the case of  Secretary,  State  of  Karnataka  vs.  Uma  Devi  (3),
reported in (2006) 4 SCC 1, to submit that such appointments do  not  confer
any right on the appointees and in such cases of appointments  made  without
following due process as per mandate of the  Constitution  or  the  relevant
rules for appointment, the Court cannot direct for grant  of  benefits  like
absorption,  regularisation  or  re-engagement.   Those  principles,  though
considered in that case in the context of absorption,  regularization,  will
apply with equal force where such illegal appointment  has  been  terminated
and the Court is called upon to consider such order and the connected  issue
of ordering for  reinstatement,  i.e.,  for  continuation  of  such  illegal
appointments.  That Constitution Bench judgment has emphasized the  relevant
aspects in paragraphs 33 and 39 and in paragraph 54 it  has  been  clarified
that those decisions which run counter to the  principles  settled  in  that
decision, or in which directions run counter to that  decision,  will  stand
denuded of their status as precedents.  The  same  principle  of  law  flows
from a Division Bench judgment of this Court in the case of  Amrendra  Singh
vs. State of Bihar, 1999 (3) PLJR 984.

7.  Having found  that  the  appellants  employees  concerned  are  backdoor
appointees as held by the learned Judges in the  impugned  orders  and  they
have no  right  to  their  posts,  we  are  now  required  to  consider  the
submissions advanced on behalf of the appellants that  the  impugned  orders
should be set aside because  the  termination  orders  were  issued  by  the
various Superintendent of Police not of  their  own  free  will  but  rather
under  the  directions  of  the  higher  authorities  including  the   State
Government and that principles of natural justice were not  within  relation
to some of the petitioners/appellants.

8.  The submissions noticed above must  be  decided  in  the  background  of
facts of each case.  In  the  present  case,  the  facts  noticed  in  brief
disclose that large scale backdoor appointments were detected to  have  been
made during the tenure of a  particular  Director  General  of  Police.   An
enquiry was held and thereafter as a result of such enquiry directions  were
issued by the higher authorities  to  the  Superintendents  of  Police,  the
competent authority to make appointments to the post of Constable, to  issue
show cause notices wherever such backdoor appointments were detected and  to
take  action  for  their  termination.   The  issue  is  whether  the  State
Government and the successor-Director General  of  Police  could  have  held
such enquiry and issued such directions or not.  In order to ensure rule  of
law and obedience to constitutional  mandate  governing  public  employment,
the State and its officials must be held duty bound to take such  steps  and
there is no legal infirmity in such action.”



8.    It has  been  pointed  out  that  S.L.P.(c)  Nos.  1237-1240  of  2008
etc.etc. and S.L.P.(c) Nos. 3334-3337  of  2008   filed  against  the  above
judgment  were  dismissed  by  this  Court  on  04.02.2008  and   04.04.2008
respectively and on  that  basis  S.L.P.(c)  No.  21543  of  2008  was  also
dismissed by this Court on 04.09.2013 in a connected matter.

9.     Learned counsel for the respondent supported the impugned  order  and
submitted that having regard to the fact that  the  respondent  had  already
served for 15 years, termination of his services was not called for.


10.   The only question for consideration is whether the appointment of  the
respondent made without  any  advertisement  or  selection  process  can  be
considered to be a valid  appointment  to  a  public  post  protected  under
Articles 14 or 311 of the Constitution of India?


11.   On due consideration, we are of the view that  the  impugned  judgment
cannot be sustained for the reasons that follow.

12.   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 Sh. Chandeshwar Pathak, s/o Sh.  Devnarayam  Pathak  of  Village  Haraji,
P.O. Haraji, PS- Dimbara,  District-  Chhapra  was  appointed  as  Constable
temporarily from 14.01.1988 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.425-10565 EB-10-605 with the basic  pay  of  Rs.425/-.   He  has
been allotted the CT No. 390.”


13.   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.

14.   In State of Orissa & Anr.  vs. Mamata Mohanty  (2011) 3  SCC  436,  it
was observed as under:


“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   Supdt. 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,  Telecom  District
Manager v. Keshab Deb,  State of Bihar v. Upendra  Narayan  Singh  and State
of M.P. v. Mohd. Ibrahim).


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  notice  board
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.”


15.   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  S.L.P.
has been dismissed by this Court as mentioned earlier.

16.    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.   Learned  single  Judge  was
justified in dismissing the writ petition while the Division Bench erred  in
interfering with the same.

17.    Accordingly,  we  allow  this  appeal,  set  aside  the  order  dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No.  945
of 2010  and restore the  order  dated  09.04.2010  passed  by  the  learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.

18.   There shall be no order as to costs.



.............................................J.
                                            [ T.S. THAKUR ]


.............................................J.
                                      [ ADARSH KUMAR GOEL ]
New Delhi
August 07, 2014

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