1997 JTR(SC) 1500
1998 AIR(SC) 1477 ; 1998 AIR(SCW) 332 ; 1998 1 BLJR 419 ; 1998 2 CLR 946 ; 1998 80 FLR 20 ; 1998 4 JT 490 ; 1998 2 LLN 47 ; 1998 1 PLJR(SC) 117 ; 1998 1 PLJR(SC) 17 ; 1998 3 RSJ 252 ; 1997 7 Scale 277 ; 1998 9 SCC 71 ; 1998 SCC(L&S) 1116 ; 1997 SCR 314 ; 1998 1 SCT 331 ; 1998 1 SLR 61 ; 1998 1 UJ 290 ; 1998 2 UPLBEC 835 ; 1998 KHC 1276 ; 1997 10 Supreme 293
1997(10) Supreme 293
SUPREME COURT OF INDIA
G.N. Ray & S.P. Bharucha, JJ.
Arun Kumar Rout & Ors. -Appellants
versus
State of Bihar & Ors. -Respondents
Civil Appeal No. 8336 of 1997
(Arising out of S.L.P. (C) No. 2439 of 1995)
Decided on 20-11-1997
Counsel for the Parties :
For the Appellants : Shanti Bhushan, Sr. Advocate, Jayant Bhushan, Advocate (M.C. Dhingra) Advocate (NP).
For the Respondents : B.B. Singh, Advocate.
Act
Referred
:CONSTITUTION OF INDIA : Art.142, Art.141
SERVICE LAW : .
(A) The constitutional provisions referenced, namely Article 142 read in conjunction with Article 141, provide the supreme legal framework within which this appeal is considered, particularly in matters invoking principles of justice, equity and conscience, while the references to service law contextualize the employment dispute concerning the regularisation of appointments in governmental service. This case specifically engages with the interplay between procedural illegality in initial appointments and the exercise of judicial discretion to grant relief based on the doctrine of satisfaction and humane consideration, where the constitutional mandate to secure the ends of justice is balanced against the requirement of adherence to statutory procedure in public employment.
(B) Key legal principles include that initial appointments made in violation of mandatory procedural requirements are legally irregular and do not confer a right to regularisation as a matter of course; however, the Court may exercise discretion to grant relief where the incumbents have served for a long period, received salaries, and acted in good faith without fraud; the principles of satisfaction and humane consideration can thus temper strict procedural illegality; and the remedy may involve selective regularisation combined with competitive processes to ensure fairness and adherence to merit and public policy.
Facts of the case:
Twenty appellants were initially appointed as daily wage earners in the Health Department on 1 January 1980 without advertisement or Employment Exchange sponsorship. Their appointments were regularised on 30 March 1989, only to be terminated on 14 October 1993 following show cause notices regarding the irregularity of their initial appointment. Although the appointments were obtained without following due procedure, the appellants had satisfactorily served for over five years, received salaries after an initial period, and were found to possess requisite qualifications without fraud. The impugned order dismissed their writ petition seeking regularisation, prompting this appeal to the Supreme Court.
Findings of Court:
The Court found that the appellants initial appointments were irregular due to non-compliance with prescribed procedures, and that they could not claim a right to regularisation as a matter of right. However, considering the humane factorsincluding long service, good conduct, lack of fraud, requisite qualifications, and past salary paymentsthe appellants deserved sympathetic consideration. The Court held that justice required a tailored remedy that balanced the need for procedural integrity with equitable treatment.
Issues:
Whether the Court can exercise discretion to regularise appointments despite procedural illegality in initial appointments where the incumbents have served long tenures in good faith? Whether selective regularisation combined with a competitive process is a just and proper remedy in such cases?
Ratio Decidendi:
The core judicial reasoning is that while initial appointments must follow due procedure and irregular appointments do not confer an automatic right to regularisation, the Court can, in exceptional cases invoking Article 142 read with Article 141, exercise discretion to grant partial regularisation based on merit and service record, coupled with a requirement for competitive public recruitment to uphold procedural fairness, thereby achieving a balance between justice and administrative integrity.
Result:
The appeal is disposed of by directing that 50 per cent of the sanctioned posts be filled through merit-based selection from among the appellants, waiving age bar and procedural hurdles for this cohort, while the remaining 50 per cent be filled through regular competitive processes, with the appellants entitled to compete for the latter without age discrimination, and the authorities urged to implement the direction expeditiously.
(A) The constitutional provisions referenced, namely Article 142 read in conjunction with Article 141, provide the supreme legal framework within which this appeal is considered, particularly in matters invoking principles of justice, equity and conscience, while the references to service law contextualize the employment dispute concerning the regularisation of appointments in governmental service. This case specifically engages with the interplay between procedural illegality in initial appointments and the exercise of judicial discretion to grant relief based on the doctrine of satisfaction and humane consideration, where the constitutional mandate to secure the ends of justice is balanced against the requirement of adherence to statutory procedure in public employment.
(B) Key legal principles include that initial appointments made in violation of mandatory procedural requirements are legally irregular and do not confer a right to regularisation as a matter of course; however, the Court may exercise discretion to grant relief where the incumbents have served for a long period, received salaries, and acted in good faith without fraud; the principles of satisfaction and humane consideration can thus temper strict procedural illegality; and the remedy may involve selective regularisation combined with competitive processes to ensure fairness and adherence to merit and public policy.
Facts of the case:
Twenty appellants were initially appointed as daily wage earners in the Health Department on 1 January 1980 without advertisement or Employment Exchange sponsorship. Their appointments were regularised on 30 March 1989, only to be terminated on 14 October 1993 following show cause notices regarding the irregularity of their initial appointment. Although the appointments were obtained without following due procedure, the appellants had satisfactorily served for over five years, received salaries after an initial period, and were found to possess requisite qualifications without fraud. The impugned order dismissed their writ petition seeking regularisation, prompting this appeal to the Supreme Court.
Findings of Court:
The Court found that the appellants initial appointments were irregular due to non-compliance with prescribed procedures, and that they could not claim a right to regularisation as a matter of right. However, considering the humane factorsincluding long service, good conduct, lack of fraud, requisite qualifications, and past salary paymentsthe appellants deserved sympathetic consideration. The Court held that justice required a tailored remedy that balanced the need for procedural integrity with equitable treatment.
Issues:
Whether the Court can exercise discretion to regularise appointments despite procedural illegality in initial appointments where the incumbents have served long tenures in good faith? Whether selective regularisation combined with a competitive process is a just and proper remedy in such cases?
Ratio Decidendi:
The core judicial reasoning is that while initial appointments must follow due procedure and irregular appointments do not confer an automatic right to regularisation, the Court can, in exceptional cases invoking Article 142 read with Article 141, exercise discretion to grant partial regularisation based on merit and service record, coupled with a requirement for competitive public recruitment to uphold procedural fairness, thereby achieving a balance between justice and administrative integrity.
Result:
The appeal is disposed of by directing that 50 per cent of the sanctioned posts be filled through merit-based selection from among the appellants, waiving age bar and procedural hurdles for this cohort, while the remaining 50 per cent be filled through regular competitive processes, with the appellants entitled to compete for the latter without age discrimination, and the authorities urged to implement the direction expeditiously.
ORDER
Leave granted.
2. Heard learned counsel for the parties. This appeal is directed against the order dated 23.9.1994 passed by the Patna High Court in CWJC No. 13043 of 1993. The writ petition filed by the appellants, 20 in number, claiming regularisation in the Health Department of the Government Bihar was dismissed by the impugned judgment. All the said 20 appellants were appointed on 1st of January 1980 by the Civil Surgeon, Dumka in Class III and Class IV posts as daily wager. On 30th March, 1989 the appointments of the appellants were regularised on the recommendation of the Appointment Committee. On 25.8.1993 the District Level Establishment Committee issued show cause notices to the appellants asking them to show cause why their appointments should not be cancelled in view of the fact that they got irregular appointments. Ultimately on 14.10.93, the services of the appellants were terminated. It has been found as a matter of fact that at the time of initial appointment, no advertisement had been given and the names of these appellants were also not sponsored by the Employment Exchange. There is, however, no dispute that they are not lacking in requisite qualifications for appointment to the respective posts in Class III or Class IV. There is also nothing on record to suggest that in obtaining the said appointments the appellants were guilty of any fraud or privy to any irregularity. Although in the matter of getting appointment in the Government Service, the procedure required to be followed for such appointments cannot be bye passed and if the initial appointment was illegal on account of not following the procedure for appointment, the incumbent obtaining appointment without following due procedure cannot claim as a matter of right to be regularised. This Court, however, has looked with sympathy when question of regulation came for consideration in cases of temporary or adhoc appointments, even made improperly, if the incumbents had been allowed to continue for a long time because of the human problem involved in such continued service. In the instant case, all the appellants after getting appointments continued for more than five years and it also appears from the records of the case that they got salary initially for a few months and thereafter continued in service without getting any salary whatsoever from 1989 up to some period of 1992. Thereafter the salary had been paid to them until the services were terminated. It may be stated that there is nothing on record to suggest that the service rendered by the appellants was otherwise unsatisfactory. It may also be stated that such salaries had been paid to these appellants after a departmental inquiry indicating that even though there were irregularities in the appointment but the appellants had requisite qualifications for the respective post to which they were appointed. Although the appellants had not been appointed by following the due procedure and therefore, they cannot claim regularisation as a matter of course but considering the fact that they had satisfactorily served the department even without getting any salary for a long time and they were not guilty of any fraud or sharp practice and also did not lack in requisite qualification and they had been appointed against sanctioned posts, we feel that the appellants deserve sympathetic consideration in getting appointment against such sanctioned posts on humane consideration. Considering the special facts of this appeal it appears to us that it will be just and proper consistent with ends of justice to direct that 50 per cent of the sanctioned posts which were held by these appellants should be filled from amongst the appellants on the basis of their inter se merit position by taking into account their academic qualifications by waiving question of age bar if any and usual procedures for such appointment. The remaining 50 per cent of the said sanctioned posts, will be filed up on regular basis by throwing it open to the members of the public and following the procedure prescribed for such appointment in the State of Bihar. The remaining appellants who will not be absorbed against 50 per cent of the said sanctioned posts will be entitled to compete for appointment in the balance 50 per cent posts along with other eligible candidates but they will not be treated unsuitable on account of age bar. On the contrary, in the matter of assessment of merit they will be given a credit of 25 per cent marks for the experience they have gained for services rendered by them for the said long period of 5 years or more. These directions are given on consideration of the special facts of this case and this order being confined to the special facts of this case is not to be treated as a precedent. The appeal is accordingly disposed of without any order as to costs. We reasonably expect that the concerned authorities will make the exercise as early as practicable for filling up the vacant sanctioned posts preferably within a period of six months from today.
Appeal disposed of accordingly.
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