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PETITIONER:

ASHWANI KUMAR & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR & ORS.

DATE OF JUDGMENT16/11/1995

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

HANSARIA B.L. (J)

CITATION:

JT 1995 (8) 563 1995 SCALE (6)779

ACT:

HEADNOTE:

JUDGMENT:

(With Civil Appeal Nos 10760-11058, 11062-66 of 1995

(arising out of SLP (C) Nos. 13203-13213, 13137-13140,

13933-13934, 14009-14030, 14031-14036, 14037-14042, 14050-

14067, 16237-16238, 15281-15435, 17114, 17292-17294, 14759,

19408, 21949, 22649, 23059, 22650-22669, 22671-22677, 22678-

22687, 22688-22692 of 1994, and 1041, 1243-1245, CC.254 and

255, SLP(C) No.2, CC.974, SLP(C) No. 7095 and 7912, CC.1557

and 2302 & SLP(C) Nos.8110, 11091, 8164-8166, 13548 and 8900

of 1995.)

J U D G M E N T

HANSARIA, J.

I have had the benefit of perusing the judgment of

learned brother Ramaswamy, J. in draft. Despite the great

respect he commands at my hand, I have not been able to

persuade myself to agree with him. According to me, the

impugned termination order deserves to be set aside, and not

upheld, as opined by learned brother. To sustain any stand,

it is stated as below.

2. A wrong-doer, a sinner, has to be punished; so too

those who aid, abet or instigate him. But not those

regarding whom only a doubt is created. Full care has to be

taken to see that while punishing the wrong-doer, the

penalty does not visit those who may be innocent, specially

when the penalty as such which would hit hard so much so as

to take away livelihood of the concerned persons.

2A. This prologue sums up the core question which we are

called upon to decide in this batch of cases, which involve

the fate of 1363 appellants inasmuch as we have to decide

whether the services of this number of persons have been

duly and legally terminated or not. The enormity itself

calls for a cautious approach. This is more so because

Article 21 of the Constitution would require us to tread the

path avoiding pitfalls, whose number is significant in these

cases.

3. The prima donna (villain of the piece) is one Dr. A.A.

Mallick, who at the relevant time was holding the post of

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Deputy Director (tuberculosis) Bihar, and had come to be

vested with almost absolute powers to see that the targets

fixed by the Government of India in implementing a scheme

relating to Anti-Tuberculosis programme are achieved. When

it came to the notice of the State Government in the Health

Department that some centres were not working as per the

directions of Dr. Mallik, all concerned were asked by the

Government to do so. The saying "Power corrupts, and

absolute power corrupts absolutely" became true inasmuch as

Dr. Mallik started either appointing himself or giving

directions right and left to appoint large number of persons

as class III/IV employees. It was ultimately found that as

against about 2500 sanctioned posts the number of persons to

be so appointed shot up to 6000. Questions relating to this

came to be asked even on the floor of the Assembly by 1987

when the concerned Minister stated that the appointments had

been given after following all procedures. The matter did

not rest there and various persons not getting their salary,

though appointed, approached the High Court of Judicature at

Patna - the number of such writ applications ultimately came

to be around 250. The High Court observed at one stage that

it saw no reason as to why the State should not proceed

against concerned officers who benefitted themselves

illegally, and disposed of the writ petitions with the

direction that an enquiry into the matter shall be held and

upon consideration of the individual cases appropriate

orders shall be passed for payment of salary for the period

the concerned person had actually worked, subject to the

condition that it was found that they had fulfilled criteria

for obtaining salary. Pursuant to these observations, a high

powered Committee came to be formed, consisting of (1)

Director-in-Chief, Health Services; (2) Deputy Director

(Administration) Health Services; (3) Deputy Director

(Planning) Health Services; and (4) Deputy Director

(Tuberculosis). The Committee issued a general notice

through newspapers to all concerned and directed them to

appear before the Committee for personal hearing between

17.8.92 to 29.9.92. A report was submitted subsequently,

pursuant to which a blanket order came to be issued on

30.4.93, terminating the services of all the employees.

4. The same came to be challenged again before the High

Court. Long arguments were advanced by both the sides and

after applying its mind to various points of fact and law, a

Division Bench of the High Court dismissed virtually all the

writ petitions by its order dated May 6, 1994. The main

order of dismissal was passed In CWJC No.4942/93 and batch.

This was followed by other Benches of the High Court in

analogous matters. The affected employees have filed these

appeals under Article 136 of the Constitution.

5. We were also addressed at length by various counsel

appearing for the appellants; so too by the State counsel.

Shri Shanti Bhushan appearing for some of the appellants

covered most of the ground, which came to be supplemented by

others. Shri Verma replied on behalf of the State.

6. disposal of the appeals, require determination of the

following:

(1) Whether the initial appointments of

the appellants were in accordance with

law?

(2) Whether the ser vices of the

appellants were duly regularised? and

(3) Whether natural justice had been

complied with before their services were

terminated?

I would consider these aspects seriatim.

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7. Whether the initial appointment of

the appellants were in accordance with

law?

The controversy qua this facet of the case is whether

the appellants were required to be initially appointed in

accordance with the procedure of appointment to class III/IV

posts as contained in the Office Memorandum (OM) of even

number issued on December 3, 1980 by the Department of

Personnel and Administrative Reforms of the State

Government. There is no dispute from the side of the

appellants that the procedure had not been followed.

Question is whether it was required to be so done?

8. Shri Shanti Bhushan was emphatic in his contention that

this OM having been meant for appointment to "posts" had no

application to the initial appointment inasmuch as the

appellants had been appointed on daily wage basis to

implement the crash programme of eradication of tuberculosis

from the State - the urgency in the matter being apparent

from the fact that the State Government was issuing orders

to all concerned to comply with the orders or directions

given by Dr. Mallik so as to achieve the target. The

appointments were thus not to any `posts', as, such

appointments can be made only if sanctioned posts be

available, which is not required to be so in case of daily

rated workers, who are appointed as and when needed and in

such number as would meet the exigency of the situation.

This was sought to be brought home by contending that an

urgent need for employing such persons may arise, say, when

there is a sudden flood or earthquake, when employment would

not brook delay and financial rules of the Government would

permit employment of required number of persons, whose wages

could be paid out of Contingent Fund. This submission is

countered by Shri Verma for the State, according to whom,

even while making initial appointment the procedure laid

down in the aforesaid OM was required to be followed.

9. To support his contention, Shri Shanti Bhushan brought

to my notice a Constitution Bench decision of this Court in

State of Assam vs. Kanak Chandra Dutta, 1967 (1) SCR 679, at

p. 683 of which it has been stated that "post may be created

before the appointment or simultaneously with it. A post is

an appointment, but even appointment is not a post. A casual

labourer is not the holder of a post". Shri Verma on the

other hand has sought to rely on a 3 Judge bench decision in

Union of India vs. Deepchand Pandey & Anr. 1992 (4) SCC 432.

As to this decision, Shri Shanti Bhushan's contention is

that it has not held that persons employed on casual basis

would be holders of posts.

10. The observation in the Constitution Bench case if

unambiguous inasmuch as the statement is that a casual

labourer is not the holder of a post. As to Deepchand

Pandey's case it may first be mentioned that it has not

taken note of the Constitution Bench decision. This apart, a

perusal of the judgment shows that it dealt with the

question as to whether a Central Administrative Tribunal,

constituted under Administrative Tribunal Act, 1985, which

was passed pursuant to Article 323-A of the Constitution,

was vested with the jurisdiction to entertain and decide the

claim of the respondents as against the appellant (Union of

India) and its officers in Railway Department. This question

came up for determination because the respondents, who had

been engaged as casual typists on daily wages in railway

offices, challenged the order of their termination before

the High Court, which allowed the same. The Union of India

contended that the High Court had no jurisdiction in view of

the provisions in the aforesaid Act. To decide this

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question, the Bench noted the case of the respondents and

then referred to the scope of Article 323-A and held that as

the respondents were claiming the right to continue in the

employment of the Union of India as before, with additional

claim of temporary status, it was idle to suggest that such

claim was not covered by the Act. It was, therefore,

concluded that the remedy of the respondents was before the

central Administrative Tribunal and not the High Court.

11. The judgment in Deepchand Pandey cannot, therefore, be

said to have laid down that even casual workers on daily

wages are holders of posts. In fact, this question had not

arisen for decision in this form in that case. This being

the position and the Constitution Bench observation being

unambiguous, I hold that the appointments of the appellants

initially were not to any posts, and so, the procedure

mentioned in the aforesaid OM was not required to be

followed.

12. Whether the services of the appellants were duly

regularised?

The aforesaid question would need answering of the

following:

(i) Was the procedure mentioned in OM

of 3rd December, 1980 required to be

followed?

(ii) Whether non-advertisement of the

posts introduced any infirmity?

(iii) Whether non-information to the

employment exchange for filling up the

posts caused any dent to the

appointments ?

(iv) Was there non-reservation of posts

for Scheduled Castes/Scheduled Tribes?

If so, whether the same introduced any

illegality in the appointments of

general candidates?

(v) Whether the regularisation had

been made pursuant to recommendation of

the Selection Committee visualised by

the aforesaid OM/

(vi) Whether any panel was prepared by

the Selection Committee? If not, does

this provide a good ground to regard the

appointments as violative of the

prescribed procedure ?

I propose to discuss these contentions in the order

noted above. It would be apposite to mention that the

aforesaid are the grounds mentioned in the blanket order of

termination.

13. Was the procedure mentioned in OM of 3rd December, 1980

required to be followed?

The thrust of Shri Shanti Bhushan's argument in this

regard is that regularisation of an ad-hoc/temporary

employee is a constitutionally protected right, as pointed

out by this Court in Dharwad's case, 1990 (2) SCC 396.

Therefore, this right should not be hedged with any such

procedure which should defeat it.

14. This submission calls for an examination of the law

relating to regularisation, as spelt out by this court in

its various decisions. There is no need to refer to

different pronouncements on this point inasmuch as the law

came to be summed up by a 3-Judge bench in State of Haryana

vs. Piara Singh and others, 1992 (4) SCC 118. Indeed, the

learned counsel of both the sides sought to rely on what has

been stated in this decision in support of their

contentions.

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15. The Piara Singh Bench after referring to a large number

of earlier decisions on the point, which include Dharward's

case, summarised the law in paragraphs 45 to 53 which read

as below:

"45. The normal rule, of course, is

regular recruitment through the

prescribed agency but exigencies of

administration may sometimes call for an

ad hoc or temporary appointment to be

made. In such a situation, effort should

always be to replace such an ad

hoc/temporary employee by a regularly

selected employee as early as possible.

Such a temporary employee may also

compete along with others for such

regular selection/ appointment. If he

gets selected, well and good, but if he

does not, he must give way to the

regularly selected candidate. The

appointment of the regularly selected

candidate cannot be withheld or kept in

abeyance for the sake of such an ad

hoc/temporary employee.

46. Secondly, an ad hoc or temporary

employee should not be replaced by

another ad hoc or temporary employee; he

must be replaced only by regularly

selected employee. This is necessary to

avoid arbitrary action on the part of

the appointing authority.

47. Thirdly, even where an ad hoc or

temporary employment is necessitated on

account of the exigencies of

administration, he should ordinarily be

drawn from the employment exchange

unless it cannot brook delay in which

case the pressing cause must be stated

on the file. If no candidate is

available or is not sponsored by the

employment exchange, 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.

48. An unqualified person ought to be

appointed only when qualified persons

are not available through the above

processes.

49. If for any reason, an ad hoc or

temporary employee is continued for a

fairly long spell, the authorities must

consider his case for regularisation

provided he is eligible and qualified

according to the rules and his service

record is satisfactory and his

appointment does not run counter to the

reservation policy of the State.

50. The proper course would be that

each State prepares a scheme, if one is

not already in vogue, for regularisation

of such employees consistent with its

reservation policy and if a scheme is

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already framed, the same may be made

consistent with our observations herein

so as to reduce avoidable litigation in

this behalf. If and when such person is

regularised he should be placed

immediately below the last regularly

appointed employee in that category,

class or service, as the case may be.

51. So far as the work-charged

employees and casual labour are

concerned, the effort must be to

regularise them as far as possible and

as early as possible subject to their

fulfilling the qualifications, if any,

prescribed for the post and subject also

to availability of work. If a casual

labourer is continued for a fairly long

spell-say two or three years - a

presumption may arise that there is

regular need for his service. In such a

situation, it becomes obligatory for the

authority concerned to examine the

feasibility of his regularisation. While

doing so, the authorities ought to adopt

a positive approach coupled with an

empathy for the person. As has been

repeatedly stressed by this Court,

security of tenure is necessary for an

employee to give his best to the job. In

this behalf, we do commend the orders of

Government of Haryana (contained in its

letter dated April 6, 1990 referred to

hereinbefore) both in relation to work-

charged employees as well as casual

labour.

52. We must also say that the orders

issued by the Governments of Punjab and

Haryana providing for regularisation of

ad hoc/temporary employees who have put

in two years/one year of service are

quite generous and leave no room for any

legitimate grievance by any one.

53. These are but a few observations

which we thought it necessary to make,

impelled by the facts of this case, and

the spate of litigation by such

employees. they are not exhaustive nor

can they be understood as immutable.

Each Government or authority has to

devise its own criteria or principles

for regularisation having regard to all

the relevant circumstances, but while

doing so, it should bear in mind the

observations made herein."

16. The only other case which I propose to note, in view of

strong reliance on it by Shri Verma, is Delhi Development

Horticulture Employees Union vs Delhi Administration, 1992

(4) SCC 99. Shri Verma drew my attention to the general

observations made by the Bench in para 23 in which a mention

was made about the common practice to ignore employment

exchanges and to employ and get employed persons who are

either not registered with the employment exchange or who,

though registered, are lower in the waiting list in the

employment register. The Bench stated that such employment

is sought and given for "various illegal considerations

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including money". The motivating force to do so is to get

the benefit of regularisation after one has continued to

work for 240 days or more, knowing about the judicial trend

that those who have completed 240 days or more are directed

to be automatically regularised. It was also observed that

this has led to development of "good deal of illegal

employment market resulting in a new source of corruption

and frustration of those who are waiting in the employment

exchange for years".

17. I would examine the question relating to regularisation

of the appellants keeping the aforesaid in mind. Shri Shanti

Bhushan submits that what was stated in paragraph 11 of

Dharward's case about regularisation within a reasonable

period being a constitutional goal has been accepted in

Piara Singh's case also inasmuch as it has been state

paragraph 51 that security of tenure is necessary which

requires adoption of positive approach coupled with empathy

for the person, because of which the view taken was that if

a casual labourer continued for a fairly long spell-say 2 or

3 years - a presumption may arise that there is if a regular

need for his services. In such a situation, it becomes

obligatory for the authority concerned to examine the

feasibility of this regularisation.

18. The learned counsel further contends that it was, as if

to fulfil the constitutional obligation, that on the

question of regularisation of employees like the appellants

being taken up with the Government, it was stated by the

Director of Health Services to all concerned in his letter

of 25.11.1982 that casual labourers who had been appointed

after 1974 and were serving continuously for 3 years be

absorbed against the regularised posts. As to those working

for less than 3 years, this letter stated that they should

also be absorbed against the vacant sanctioned posts. It is,

therefore, urged that no procedure at all was required to

regularise those who had served for 3 years or more after

1974.

19. I would not agree with Shri Shanti Bhushan that no

procedure at all was required to be followed, in view of the

law as mentioned in Piara Singh's case, according to which,

the adhoc/temporary employees have also to get selected,

along with others, to get regularised, which apparently

means that they must undergo a selection process which has

to be according to a settled procedure. And the procedure

for the cases at hand is the one mentioned in the aforesaid

OM. It is, therefore, to be seen whether there are materials

to show qua the appellants that the procedure mentioned in

the O.M. of 3rd December was not followed while regularising

them.

20 As to this facet of the case, Shri Shanti Bhushan has

sought to rely strongly on the statement made by the

concerned Minister on the floor of the Assembly on two

occasions. The first was on 14.7.1987, when in reply to the

question "(w)hether it is a fact that from the year 1985 to

March, 87 about 200 persons were appointed in Class III and

IV posts in different TB Institutes by the Incharge, Deputy

Director, TB, without publication of interview. If yes, does

the Government propose to make an inquiry into this ? If

yes, why has it not been made till date ?", Minister Health

and Family Welfare Department stated that the appointments

were made "after following all procedure" which was

contained in letters dated 17.2.1983, 25.3.1983, 24.7.1984,

17.10.1984, 31.12.1986 and 31.1.1987. The matter again came

before the Assembly on 21.1.1987, when another M.L.A.

desired to know from the Minister of Health and Family

Welfare whether about 800 employees had been appointed

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against different class III and IV posts illegally by the

Director, TB, Dr. A. Mallik, between 1977 and 1987. The

further question was if this were to be a fact, "does the

Government propose to hold an inquiry against Dr. Mallik for

Making illegal appointments and illegal accumulation of

wealth. If not, why ?" The reply of the Minister was that

appointment had been made "in regular manner against created

sanctioned vacant posts.". The Minister further stated that,

therefore, "question of illegal appointments does not

arise".

21. Shri Verma would not like us to place much reliance on

what was stated on the floor of the Assembly, because the

questions had been answered, as per the State's case put up

in counter-affidavit filed here, on the information

furnished by Dr. A.A. Mallik himself. However, as on

subsequent inquiry it was found that all informations

furnished by Dr. Mallik were false, a fresh communication

was addressed by the Department to the Assembly.

22. I would not accept this stance taken in the counter-

affidavit for various reasons. The first is that it is

beyond comprehension that a question relating to alleged

illegal activities of Dr. Mallik would be answered by a

Minister on the floor of House on the basis of information

supplied by none else than Dr. Mallik. Secondly, the

counter-affidavit has been sworn on behalf of the State by

Director (Administration, Health Services, whereas an

affidavit on behalf of the State is to be sworn by an

officer of the Secretariat. Thirdly, there is nothing on

record to satisfy that the fresh information collected on

subsequent inquiry had really been furnished by the

Department to the Assembly.

23. The aforesaid contention of Shri Shanti Bhushan was

buttressed by other learned counsel appearing for the

appellants by drawing by attention, inter alia, to a writ

proceeding before the Patna High Court which shows that on a

direction being given by the Court to pay to the writ

petitioners in question their wages, if they had been

regularly appointed, the High Court was informed that, on

enquiry being made, it was found that the writ petitioners

had been regularly appointed.

24. There are also on record of some cases minutes of

Selection Committee consisting of Deputy Director, Health

Service (TB), Assistant Director (Philoria Control); and

Senior-most SC/ST officer working under the TB programme.

This is the composition of the Selection Committee meant for

making regular appointments to class III & IV posts under

Tuberculosis Control Programme, as would appear from the

Government communication of 25.3.1983, which is one of the

letters mentioned by the Minister on 14.7.1987 when he

answered the Assembly question. It is, of course, true, as

pointed out by Shri Verma, that in the papers as filed, at

the place of signatures "Sd/-" appears. The explanation of

the concerned counsel is that this had happened because the

signatures of the concerned person were not legible. It is

also urged that the appellants, having had no custody of the

original records, could lay their hands on a document of

this nature only. The original of the document not being

available to us, which may be because of the burning of all

records in the fire which took place in the State

Secretariat, it cannot be held that the concerned persons

were regularised after proper selection. But then, in some

cases Selection Committee did examine the candidature of

concerned persons and they had come to be regularised

pursuant to the recommendation of the selection committee.

25. In the aforesaid permises, i would not accept the

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contention advanced on behalf of the State that the

procedure visualised by the O.M. of 3rd December, 1980 was

not followed at all while regularising the appellants. Of

course, the materials on record do not permit to say that

the procedure had been followed in case of all the

appellants.

26. Whether non-advertisement of the posts introduced any

infirmity?

Shri Shanti Bhushan contends that as per the law summed

up in Piara Singh's case, advertisement is not a must. Shri

Verma, submits that unless the posts are advertised,

eligible persons would not know about the availability of

post, and so, it has to be there. Para 47 of Piara Singh

makes this position clear, as it states that a notice must

be published in this regard in appropriate manner. This

publication could be, in appropriate cases, on notice boards

also, according to me.

27. The aforesaid being the position, I am statisfied that

the posts were required to be advertised. This, however, is

an ordinary requirement, which would be apparent from the

word "ordinarily" finding place in para 47. This apart, it

would appear that the news was published on the notice board

of some offices. I would accept this as sufficient in the

facts and circumstances of the present case. The non-

advertisement of the posts in newspapers had, therefore,

caused no infirmity to the regularisation.

28. Whether non-information to the employment exchange for

filling up the posts caused any dent to the appointments ?

Para 47 of Piara Singh's case states that where an ad

hoc or temporary employment is necessitated on account of

exigency of administration, the incumbent should be drawn

from the employment exchange. This requirement has a rider

namely, "unless it cannot brook delay". As already stated,

there was a pressing cause here, which is almost writ large

on the face of the record. The non-information to the

employment exchange had, therefore, caused no dent to the

appointments.

29. Was there non-reservation of posts for Scheduled

Castes/Scheduled Tribes? If so, whether the same introduced

any legality in the appointment of general category

candidates ?

The facts as unfolded in the present appeals show that

posts had in fact been reserved. In one TB Centre, 16

Scheduled Castes, 5 Scheduled Tribes, 16 Backward I, and 14

backward II came to be appointed, along with 16 general

category candidates. This tabulation is at page 143 of paper

book in SLP(C) Nos.12934-35 of 1994. A perusal of the paper

book in SLP(C) Nos.13203-13 of 1994 shows that Scheduled

Castes/Scheduled Tribes candidates were appointed to the

posts of B.C.G. Technicians. The annexure at Page 116 gives

the names of such candidates, and the list at pages 117 to

119 shows that there were many Backward Class I and Backward

Class II appointees also. This shows that there was not only

reservation for Scheduled Castes and Scheduled Tribes but

appointments too had been given. That this was the position

in all the centres cannot, however, be known from material

on record. The appellants' counsel are justified in saying

that they could not have produced documents to show as to

how this requirement was satisfied in all the centres. The

burden of proving this conclusively cannot be thrown on the

appellants, as after all it is the State which had

terminated their services, inter alia, on this ground, and

so, the burden has really to be discharged by the State, to

do which virtually nothing has been done, may be because the

Secretariat records having been burnt, nothing is available.

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It may, however, be that the District Records could have

perhaps thrown some light, but they were shown no light.

30. The materials available show there was reservation for

SC/ST candidates. The question of illegality in appointment

of general candidates on the ground of non reservation does

not, therefore, arise.

31. Whether the regularisation had been made pursuant to

recommendation of the Selection Committee visualised by the

aforesaid OM ?

This aspect has already been dealt above. To reiterate,

there are materials on record to show that in some cases

regularisation was pursuant to the recommendation of a

properly constituted Selection Committee. I am conscious

that one swallow does not make a summer. But then, to have

required the appellants to bring on record the proceedings

of other Selection Committees, if there were any, would have

placed an unjustified burden on them. What has been stated

above about the State's burden applies qua this question

also.

32. Whether non-preparation of any panel by the Selection

Committee provided a good ground to regard the appointments

as violative of the prescribed procedure?

A perusal of the O.M. of 3rd December, 1980 does show

that the Selection Committee was required to prepare a merit

list. That such a merit list/panel was prepared in some

cases would be evident from a perusal of the paper book in

SLP(C) Nos. 13203-13 of 1994. But then, it cannot be said

that this was done in all cases. Even so, for the reasons

already alluded which would apply proprio vigore to this

aspect also, there is no justification in finding infirmity

in all the appointments because of lack of materials on

record to show that the appointments had been made without

preparation of merit list/panel.

33. Whether natural justice had been complied with before

termination of the services of the appellants?

What are the requirements of the natural justice cannot

be laid down in any straight jacket. This is a well settled

position in law. The facts and circumstances of the case in

question would alone provide the answer whether natural

justice has been complied with or not. This is so well

settled position by now that I do not propose to advert to

any case law on this subject.

34. It is equally well settled that where adverse civil

consequences follow pursuant to an order of an authority,

natural justice has to be complied with ordinarily. Law,

however, permits exclusion of natural justice in some cases,

like urgency. Shri Verma submits that present is a case

where natural justice got excluded because of adoption of

unfair means while seeking appoints. In support of this

contention, strong reliance is placed on the decision of

this court in Bihar School Examination Board vs. Subhash

Chandra Sinha and others, 1970 (3) SCR 963. According to

Shri Shanti Bhushan, this decision has not said anything

contrary to the well settled principle that where adverse

civil consequences follow natural justice has to be complied

with.

35. Let it be seen which of the aforesaid contentions

merits acceptance. In the aforesaid case this Court examined

the question whether notice to the respondents was necessary

before cancellation of their examination because of adoption

of unfair means at an examination centre. The question of

giving notice required examination, as it was contended that

natural justice required the same. On the facts of that case

it was held that notice was snot necessary. This view was

taken because the Court was satisfied about adoption of

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unfair means, relating to which an independent enquiry had

been held by Unfair Means Committee of the appellant Board.

Shri Verma states that as in the present case also the

appellant has adopted unfair means, no notice was required

to be given.

36. A close perusal of the judgment shows that that was not

a case of any particular individual being charged with

adoption of unfair means, but of the conduct of all the

examinees or a vast majority of them at a particular centre.

The Court raised a poser that as the question was not of

charging any one individual with unfair means but to condemn

the examination as ineffective for the purpose it was held,

must the Board have given an opportunity to all the

candidates to represent their cases? The Court thought it

was not necessary, because the examination as a whole was

being cancelled. It was further observed that as the Board

had not charged any one with unfair means so that he could

claim to defend himself. It was, therefore, concluded that

it would be wrong to insist that the Board must hold a

detailed enquiry into the matter and examine each case to

satisfy itself which of the candidates had not adopted

unfair means.

37. The facts of the present case are poles apart. Here the

allegation is undoubtedly against each appellant. Even if it

were to be that some among them had adopted unfair means,

the appointments of others could not be set aside because of

that. It was not a question of some illegality of the

general nature like adoption of a wrong procedure in

selection, like fixing of very high percentage marks for

viva voce. It may be that a case where such illegality is

committed, individual notice would not be necessary. I,

therefore, do not think if the ratio in Subhash Chandra's

case could assist the State to contend that individual

notice was not necessary.

38. I may deal with another decision pressed into service

by Shri Verma in this context. The same is S.K.

Balasubramanian vs. State of Tamilnadu, 1991 (2) SCC 708.

The learned counsel has read out to me from this decision

paragraph 9 at pages 713 and 714 and contended that because

what has been stated therein, it could be said that even if

an order is invalid, there would be no question of affording

an opportunity of hearing. I am afraid that the learned

counsel has misunderstood the purport of what has been

stated therein. I have said so because a perusal of that

para shows that this Court had said about no question of

affording an opportunity of hearing to the petitioners

before passing the impugned order dated March 3, 1980,

because the Court found that that order was founded on

Government orders dated November 16, 1976 and June 15, 1977,

which were invalid according to the Court as those orders

had altered the principle of fixation of seniority contained

in Rule 35 of the General Rules, which could have been done

only by suitably amending the Rule, and not by issuing

administrative instructions. Having found that the order in

favour of the petitioners dated March 3, 1980 was founded on

untenable principle of fixation of seniority, the court

said, and with respect rightly, that no opportunity was

required to be given to the petitioners who sought to

support their seniority position on the principles as

embodied in the Orders dated November 16, 1976 and June 15,

1977. the foundation of the order dated March 3, 1980 having

fallen to the ground, no opportunity was necessary to be

given to sustain the order dated March 3, 1980, as that

order was founded on wrong principles of seniority. This

being the position, I would indeed say that Shri Verma may

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not have advanced this contention.

39. Having held that natural justice was not excluded, let

it be known what was done to satisfy this in the present

cases. Materials on record show that at first attempt was

made to service individual notices, whereupon the serving

persons were even mis-handled; so, recourse was taken to

newspaper publication. This was done in some Hindi local

newspapers. It is on record that pursuant to the notice so

given good number of persons likely to be affected had

appeared before the aforesaid Committee. It may be that some

persons did not appear before the screening committee,

despite knowledge of the same. From the materials on record,

we are not in a position to know what is the total number of

such persons.

40. To satisfy whether newspaper publication substantially

complied with the requirement of natural justice, we had

desired to know from Shri Verma which were these newspapers,

what was their circulation and at which places the

newspapers had circulation. Shri Verma could not throw any

light on these aspects. His contention was that as some of

the affected persons had known about the publication, we may

presume that they must have informed their colleagues, and

the news must have spread like a wild fire. I would demur to

accept these contentions. It has also been noted that some

of the incumbents had read only upto Class IV, which would

show that they are not literate and enlightened enough to

read newspapers as a habit.

41. So, despite my being satisfied that a case for

newspaper publication was made out, as on effort being made

to serve individual notices, there was non-handling of

serving persons, the publication of the type undertaken did

not, however, satisfy the call of natural justice. As no

fetish should be made about natural justice, it should not

be allowed to become farce also. The giving of opportunity

to show-cause in the present cases having been made known

through newspapers, I do think that the opportunity given

was not adequate and reasonable. Even so, I have not felt

inclined to set aside the termination order on this ground,

as we ourselves heard the appellants, which can be taken as

a sort of post-decisional opportunity, which could be said

to have met the requirement of natural justice.

CONCLUSION

42. Having expressed my views on the questions of law and

fact I would conclude as below.

43. Broadly stated, the position is that Dr. Mallik had

undoubtedly out-stepped confines of his powers and had

betrayed the confidence reposed in him. I have said so

because it is clear that as against about 2500 sanctioned

postes, he was instrumental in giving/directing appointments

to about 6000 persons. But I am clear in my mind that all

the persons so employed had not aided, abetted or instigated

Dr. Mallik in doing so. The difficulty is that we are not in

a position to find out who the aiders/abetters were. If the

State could have made efforts to find this aspect, with

reference to the records which should have been available at

the District Headquarters/TB Centres, it should have been

possible to find out, who among the 6000 and odd persons,

had been legally or validly appointed. This has, however,

not been done. The question is whether despite this in-

action or non-action, there is justification in taking the

view that the 1363 appellants before us were among those who

were illegally appointed. The State counsel submits that we

should hold so; Shri Shanti Bhushan contends that there is

no basis to hold so.

44. I have given my considered thought to this all-

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important aspect of the case and, according to me, as about

2500 persons could have been appointed by Dr. Mallik, and as

there are materials on record to show that regular

appointments had also been made (how many, we do not know)

and as it is not possible to know who the regularly

appointed persons were, facts permit to say that the

appellants before us, whose number is 1363, may be among

those who were regularly appointed. I have thought it fit to

take this view because of the mandate in Article 21 of the

Constitution, which would not permit taking away livelihood

of so many of the incumbents unless satisfied that they were

among the persons who had not been legally and validly

appointed. It deserves to be pointed out that as the State

has taken away the rights which had come to inhere in the

appellants, the primary burden is on the State to establish

that illegality had been committed in giving appointments to

the appellants. This burden the State has undoubtedly failed

to discharge qua the appellants. The benefit of the same has

to be made available to them.

45. I would further say that in such matters there is

(some) justification to keep human consideration also in

mind, as urged by Shri Shanti Bhushan by referring to H.C.

Puttaswamy vs. Hon'ble the Chief Justice, Karnataka High

Court, 190 (Supp) 2 SCR 552. In that case this Court,

despite having regarded the impugned appointment as invalid,

refused to recognise the consequence which would have

involved uprooting of the appellants, because of which it

adopted a humanitarian approach, as it was felt that the

appellants "seem to deserve justice ruled by mercy". Not

only this, the Court went to the extent of giving all the

benefits of past service after stating that the appellants

shall be treated to have been regularly appointed. The

learned counsel prays that we may view the cases at hand

also similarly, as any adverse order would uproot 1363

families inasmuch as virtually all the appellants are from

poorer section of the society and it may well be that the

concerned families have no other bread-earner. I have felt

inclined to bear this aspect also in mind, albeit

tangentially. Having noted that materials on record do not

permit to hold that the appellants were among those who were

appointed beyond the sanctioned strength, my conscience does

not permit to punish them for the wrong or sin which might

have been committed by others.

46. According to me, therefore, the legal, just, fair and

reasonable order to be passed in these appeals would be to

say that all the 1363 appellants would be deemed to have

been regularly appointed and I would, therefore, set aside

the termination order qua them. It is made clear that this

order would not in any way be taken advantage of by anybody

except 1363 appellants before us.

47. The appeals are, therefore, allowed by setting aside

the termination order qua the appellants alone and directing

the reinstatement of all them. Appropriate orders in this

regard would be passed within two months from today. The

appellants would not, however, be paid any amount towards

back wages/salaries, but they would get other service

benefits.

48. Before parting, I would observe that nothing stated by

me relating to the appellants would enure to the benefit of

Dr. Mallik in the on going inquiry against him. It would be

concluded as per the materials collected or to be collected

and the inquiry against him would take its own course. Not

only this, I would desire the conclusion of the inquiry

against Dr. Mallik most expeditiously.

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