Case Note & Summary
The case concerned a mass recruitment scandal in the Health Department of the Government of Bihar. Dr. A.A. Mallick, Deputy Director and Director of the Tuberculosis Centre at Patna, was in charge of the Tuberculosis Eradication Programme under the 20-Point Programme. He was made Chairman of a Selection Committee to recruit Class III and Class IV employees. Taking advantage of this authority, he appointed approximately 6000 persons without any written orders, often without sanctioned posts, and by questionable means such as transfers and fabricated orders. The Government initially defended these appointments in the State Legislative Assembly but later admitted the information was incorrect. Following public interest litigation and writ petitions under Article 226 of the Constitution seeking salaries, the Patna High Court directed an enquiry. A Vigilance Department report dated 7 May 1991 found that Dr. Mallick had violated recruitment rules and colluded with other officers. A Screening Committee was constituted, notices were published in newspapers because direct service was impossible due to a law and order situation, and about 987 employees appeared. Relevant records were burnt, so the committee relied on statements. It concluded that all appointments were illegal, as they were made without following due procedure, without written orders, and some were based on fabricated documents. The Government accepted the report and cancelled all appointments. The affected employees filed writ petitions challenging the cancellation, but the Patna High Court dismissed them by common judgment dated 6 May 1994. The employees appealed to the Supreme Court by special leave. A Division Bench of K. Ramaswamy, J. and Hansaria, J. heard the appeals but differed. K. Ramaswamy, J. held that the appointments were patently illegal for want of sanctioned posts and violation of Articles 14 and 16(1); that regularization could not cure illegality; that natural justice was not required; and that the High Court's order should be confirmed, subject to 11 directions for future recruitment. Hansaria, J. held that the Office Memorandum dated 3 December 1980 did not apply, that non-advertisement and non-intimation to employment exchange were not fatal, that some appellants might have been regularly appointed, and that natural justice was not fully complied with but that would not nullify termination at this stage. He proposed setting aside the termination orders qua the 1363 appellants before the Court. Due to this difference of opinion, the Chief Justice referred the matter to a larger Bench of S.B. Majmudar, J. and Sujata V. Manohar, J. The larger Bench heard rival contentions. The appellants argued that Dr. Mallick was duly empowered, that the Office Memorandum did not apply due to urgency, and that the appointments were valid. The State contended that the appointments were illegal, made without sanctioned posts, and that cancellation was proper. The extracted judgment text ends before the final operative order, so the ultimate decision and directions of the larger Bench are not available in the provided excerpt. However, the legal issues centered on the validity of mass appointments, the scope of regularization, procedural compliance, natural justice, and the High Court's power under Article 226.
Headnote
A) Service Law - Legality of Mass Appointments - Public Employment - Constitution of India, Article 14, Article 16(1) - Dr. A.A. Mallick appointed around 6000 persons without written orders, without verifying vacancies, and in violation of prescribed government procedure - The court was required to decide whether such appointments were void ab initio for want of sanctioned posts and compliance with constitutional equality guarantees - K. Ramaswamy, J. held that existence of post or vacancy was a sine qua non and therefore the recruitment was patently illegal and without authority of law; Hansaria, J. agreed that direct appointment of about 6000 persons when only 2500 sanctioned posts existed was not justified but thought the appellants might not all be wrongdoers - The larger Bench was constituted to resolve this difference - (Paras Not mentioned) B) Service Law - Regularisation of Irregular Appointments - No regularisation when initial appointments void - Constitution of India, Articles 14, 16, 309 - When initial appointments are made in violation of rules or without any appointment orders, there remains no question of regularisation - To confer permanency of appointment to posts by regularisation in violation of executive instructions or rules would be subversive of procedure - K. Ramaswamy, J. concluded that regularisation of such initially illegal appointments could not be effected - This principle formed part of the contested issues before the larger Bench - (Paras Not mentioned) C) Service Law - Natural Justice - Applicability to Mass Illegal Appointments - Constitution of India, Article 14 - Principles of natural justice were not required to be followed in the present cases where appointments were void and fraudulent; even otherwise there was due compliance - K. Ramaswamy, J. held that natural justice principles did not need to be followed, while Hansaria, J. held there was no full compliance but that had no nullifying effect before the Supreme Court - The larger Bench had to reconcile these views - (Paras Not mentioned) D) Service Law - Procedural Requirements for Recruitment - Advertisement and Employment Exchange - Office Memorandum dated 3 December 1980 - Non-advertisement of posts in newspapers and non-information to employment exchange may not cause infirmity if the programme was urgent and outside regular cadre - Hansaria, J. held that the Office Memorandum dated 3 December 1980 did not apply to the 20-Point Programme and that non-advertisement and non-intimation to employment exchange caused no dent to appointments - K. Ramaswamy, J. insisted that prescribed procedure under circulars had to be followed - The larger Bench was required to decide which view was correct - (Paras Not mentioned) E) Constitutional Law - Judicial Review under Article 226 - High Court's Power to Uphold Cancellation of Mass Appointments - Constitution of India, Article 226 - The Patna High Court upheld the Government's cancellation of all appointments made by Dr. Mallick after an enquiry committee found them illegal - The Supreme Court had to consider whether the High Court's dismissal of writ petitions was justified - The appeals arose from this High Court decision, which was confirmed by K. Ramaswamy, J. subject to certain directions, while Hansaria, J. proposed setting aside termination orders qua 1363 appellants - The larger Bench was to give finality - (Paras Not mentioned)
Issue of Consideration
Whether the appointments of approximately 6000 Class III and Class IV employees made by Dr. A.A. Mallick under the Tuberculosis Eradication Programme were illegal and void; whether such appointments could be regularized; whether principles of natural justice were violated; and whether the Patna High Court correctly upheld the cancellation of all such appointments.
Law Points
- Public employment must comply with Articles 14 and 16(1) of the Constitution
- existence of sanctioned post is a sine qua non for appointment
- regularization cannot cure illegal appointments made without following procedure
- principles of natural justice not required for void appointments
- executive instructions prescribing recruitment procedure may be relaxed only in urgent circumstances
- judicial review under Article 226 can uphold cancellation of mass illegal appointments
