Supreme Court of IndiaAshwani Kumar & Ors vs State Of Bihar & Ors on 16 December, 1996Equivalent citations: AIR 1997 SUPREME COURT 1628, 1997 AIR SCW 509, 1997 LAB. I. C. 578, 1997 (2) SCC 1, (1997) 1 JT 243 (SC), 1997 (2) BLJR 1772, 1997 (1) JT 243, 1998 (2) UPLBEC 1550, 1997 BLJR 2 1772, (1998) 2 UPLBEC 1550, (1997) 1 PAT LJR 59, (1997) 1 SCT 573, (1997) 2 BLJ 762, (1997) 6 SUPREME 66, 1997 SCC (L&S) 267Author:S.B. MajmudarBench:S.B. Majmudar,Sujata V. ManoharPETITIONER:
ASHWANI KUMAR & ORS.

	Vs.

RESPONDENT:
STATE OF BIHAR & ORS.

DATE OF JUDGMENT:	16/12/1996

BENCH:
S.B. MAJMUDAR, SUJATA V. MANOHAR




ACT:



HEADNOTE:



JUDGMENT:WITH
     [C.A. Nos.	 10760-11058/95; 11062-66/95; C.A. No. 16746
of 1996 (arising out of S.L.P.(C) No.6174/92; C.A. No. 16747
of 1996	 (arising out  of S.L.P.(C)  No.14275/94;  C.A.	 No.
16748 of  1996 (arising	 out of	 S.L.P.(C)  No.7410/95;	 and
C.A., No.  16749 of 1996 (arising out of S.L.P.(C) No. 24553
(C.C. 4638/95]
		      J U D G M E N T
     S.B. Majmudar. J.Leave granted  in S.L.P.(C)  Nos.6174 of 1992, 14275 of
1994. 7410 of 1995 and S.L.P.(C) No. 24553 (CC 4638/95).This group	 of appeals,  on grant	of special  leave to
appeal against	the common  judgment of	 Patna High Court in
CWJC No.5163  of 1993 and batch decided on 6th May 1994, has
been placed  before this  larger  Bench	 by  the  orders  of
Hon'ble the  Chief  Justice  on	 account  of  difference  of
opinion	 between  two  learned	judges	of  this  Court,  K.
Ramaswamy, J.  and Hansaria,  J., constituting	the Division
Bench which  earlier heard this group of matters. Before the
main  points   for  difference	 are  highlighted   and	 the
contentions of	respective contesting  parties are noted, it
would be  necessary to note at the outset the backdrop facts
leading to these proceedings.Backdrop Facts
     One  Dr.	A.A.  Mallick,	 Deputy	  Director,   Health
Department of  the Government  of Bihar,  was in  charge  of
Tuberculosis for a number of years while he was working as a
member of  the medical service of the State of Bihar. He was
Director of the Tuberculosis Centre at Patna. Eradication of
Tuberculosis was taken up as a part of 20-Point Programme in
planned expenditure.  The  activities  in  the	Tuberculosis
Centre at  Patna were  extended to  various districts. Since
Dr. Mallick  happened to  be the  Director of the Centre, he
was made  Deputy Director  of the Scheme. The Government had
also issued  directions to  the District Medical Officers to
abide by  the instructions  of Dr. Mallick in implementation
of the	programme. He  was made	 the Chairman  of  Selection
Committee  constituted	 by  the  Government  consisting  of
himself. Assistant  Director of Pilaria and a senior officer
representing Scheduled	Castes/Scheduled Tribes	 to  recruit
2250 class  III and  Class IV  employees on posts created to
implement the  Scheme in addition to around 800 to 900 staff
in Patna Centre in all categories. Taking advantage thereof,
the undisputed	fact is	 that, he  appointed around 6000 (as
found by the Committee) while the Government asserts them to
be approximately 7000. Be that as it may, not less than 6000
persons were  appointed by  Dr. Mallick	 without any written
orders. He  directed many of them to be adjusted by transfer
by District  Medical Officers  and some of them had produced
fabricated appointment	orders. He shuffled their payment of
salaries by  turns. Another  device adopted  in the  macabre
episode was to make the employees go on strike and when some
sensitive M.L.As.  raised the  question, on the floor of the
State Legislative Assembly, off illegal appointments made by
Dr. Mallick, the Government initially posed the appointments
to be  legal and  justified his	 action to  be valid. Later,
when facts  themselves proved  their faulty  admission, they
made amends  before the	 Assembly and the Government made an
elaborate statement apprising the House that the information
furnished earlier was not correct.Due to  the agitation,  the Director an Joint Secretary
to the	Government. Health  Department had issued directions
to regularise  the services  of daily-rated  Class  III	 and
Class IV  employees. Taking  aid thereof, it is claimed that
regularisation	of  many  of  them  including  most  of	 the
appellants,  was  made.	 When  alarming	 bells	rang  around
portals of  Patna  High	 Court	by  filing  petitions  underArticle 226of the Constitution seeking payment of salaries,
the High  Court, though	 initially in some cases directed to
enquire into  the cases	 and to pay salaries, later found it
difficult to  cope up  with the	 situation.  So	 an  Enquiry
Committee  was	 constituted  to   find	 out   whether	 the
appointments made  by Dr.  Mallick were	 valid	and  whether
salaries could be paid to such employees.In the  meanwhile, the  Government	 also  directed	 the
Vigilance Department  to enquire  into the matter and on 7th
May 1991, the Vigilance Department in its report pointed out
that Dr.  Mallick had  violated the rules of recruitment and
in collusion  with other  officers had appointed daily-rated
Class III  and Class IV employees. Pursuant to the direction
of the	High Court,  a Screening  Committee was	 constituted
which sought  to serve	notice on  the employees.  When	 the
Deputy Director	 went to  the Centre  at Patna	to serve the
notice on  the employees, he was min-handled resulting in an
ugly law  and order  situation. In consequence, notices were
published on  two different  dates in  different  newspapers
inviting submission  of the  claims  by	 all  the  employees
appointed by  Dr. Mallick, together with supporting material
justifying their appointments. Different dates of hearing by
the Committee  were staggered.	About 987 employees appeared
before the  Committee and submitted their statements. In the
meanwhile, relevant  records were  burnt out. The High Power
Committee in the absence of authentic record was constrained
to depend  upon the  statements made by the employees before
it. After  hearing them	 and considering  the record  placed
before it, the Committee found that Dr. Mallick did not make
any order  of appointment  on daily  wage basis by following
due procedure.	It found  it difficult	to accept  even	 the
orders of  confirmation. In  that view,	 the Committee found
that the  initial appointments	made by	 Dr. Mallick were in
violation of  the instructions	issued	by  the	 Government.
Therefore, they	 were found  to be illegal appointments. The
Committee also found that Dr. Mallick circumvented the rules
by making  adjustment  by  transfer  without  verifying	 the
qualifications, eligibility  or disclosing  previous  places
where at  the candidates  appointed had	 worked and dates of
their appointment and by transferring them to the respective
places by  cyclostyled	orders.	 He  directed  the  District
Medical Officers  to verify  the  credentials  and  then  to
appoint them  temporarily. The Committee also noted that the
third  category	  was  of  persons  who	 were  appointed  by
producing fabricated orders of appointment. Consequently, it
directed to cancel all the appointments made by Dr. Mallick.
On receipt  of the  report and	on  its	 consideration,	 the
Government found  them to be invalid and illegal and all the
appointments  were   canceled.	When   their  legality	 was
questioned in  the writ	 petitions filed  underArticle 226,
the High  Court upheld	the Government	action.	 Thus  these
appeals by special leave.When this	group of  appeals was  finally heard  by the
Division Bench	of this Court consisting of K. Ramaswamy, J.
and Hansaria, J., as noted earlier, on hearing the arguments
of learned  counsel appearing  for the	contesting  parties,
there arose  a difference of opinion between the two learned
judges. K. Ramaswamy, J., came to the following conclusions:1.   Even though  it was  open to  the Government  to create
     posts  or	 to  fill  up  the  posts  independently  of
     existence of  any law or statutory rules made under the
     proviso toArticle 309of the  Constitution  to	that
     effect, the said exercise had to be consistent with the
     right guaranteed  underArticles  14and16(1)of	 the
     Constitution of India.2.   When planned  expenditure	is  required  to  be  spent,
     budgetary sanction	 is mandatory.	In the present cases
     when some	of the	employees were	sent for one month's
     training posts  were created and budgetary sanction was
     obtained. The  cases at hand were unique and the device
     adopted by Dr. Mallick was in flagrant violation of all
     norms of  administrative procedure known to law. He had
     given decent  burial to  procedure	 prescribed  by	 the
     Government. Abusing  the absolute	power secured in his
     hands, he	appointed  6000	 persons  at  his  whim	 and
     wagery.3.   Procedure for  appointment to  Class III  and Class  IV
     posts was	given a	 go-by. Instead	 casual appointments
     were made without any letters of appointment to fill up
     even non-existing vacancies.4.   Existence of  post or  vacancy was	 a sine	 qua non for
     making appointments to such existing posts or vacancies
     and as there were no 6000 posts or vacancies available,
     the recruitment  made by Dr. Mallick to these posts was
     patently illegal and without authority of law.5.   When initial  appointments	 were  in  violation  or  in
     negation of the rules or in other words when there were
     no	 orders	  for  appointment  there  would  remain  no
     question of  regularisation of  such initially  illegal
     appointments. To  confer permanency  of appointment  to
     the  posts	  by  regularisation  in  violation  of	 the
     executive instructions or rules is itself subversive of
     the procedure.6.   Without following	due procedure  prescribed under	 the
     circulars, regularisation	of services  of	 daily	wage
     employees could not be effected.7.   Principles of  natural justice  were not required to be
     followed in the present cases. Even otherwise there was
     due compliance with these principles.8.   As all the appointments were made in flagrant breach of
     the  procedure   and  the	executive  instructions	 and
     amounted to blatant abuse of the centralised power held
     by Dr.  Mallick and  subversive of	 discipline, it	 was
     futile to issue writs as prayed for.9.   However  Ramaswamy,   J.  was   inclined  to  issue  11
     directions in  para  36  of  his  judgment	 for  future
     recruitment of  class  III	 and  IV  employees  in	 the
     Tuberculosis Eradication  Programme, providing  certain
     safeguards	  for	considering   the   feasibility	  of
     recruiting the present appellants on these posts.In view  of the  aforesaid findings  and conclusions K.
Ramaswamy, J.  was inclined  to dispose	 of the	 appeals  by
confirming, subject  to the  aforesaid directions, the order
of the High Court dismissing the writ petitions.On the  other hand	 Hansaria, J., reached the following
conclusions and findings :1.   For the  purpose of  recruiting Class  III and Class IV
     employees	in  the	 20-Point  Programme  the  procedure
     prescribed by Office Memorandum dated 3rd December 1980
     was not required to be followed.2.   It could  not be  said that the procedure visualised by
     Office Memorandum	dated  3rd  December  1980  was	 not
     followed at all while regularising the appellants.3.   Non-advertisement of  posts in newspapers did not cause
     any infirmity to the regularisation.4.   Non-information to	 the Employment	 Exchange had caused
     no dent to the appointments.5.   The question  of illegality  in appointment  of general
     candidates on  the ground	of non-reservation  did	 not
     arise as the material showed that there was reservation
     of SC/ST candidates.6.   Material  on   record  showed   that  in	some   cases
     regularisation was	 in pursuance of the recommendations
     of a properly constituted Selection Committee.7.   Merit list/panel was prepared in some cases pursuant to
     O.M. of  3rd December  1980. But  it could	 not be said
     that it  was done	in all	cases. However, there was no
     justification  in	 finding  infirmity   in   all	 the
     appointments because of lack of material on record.8.   Principles of  natural justice were not fully compelled
     with before terminating the services of the appellants.However, that  had no  nullifying effect  so far as the
     present proceedings are concerned as they were heard by
     this Court	 and consequently on that ground termination
     orders could not be set aside.9.   Even though  Dr. Mallick  was not	justified in  giving
     direct appointment	 to about  6000 persons	 when  there
     were only	2500 sanctioned	 posts, all  the persons  so
     employed hand  not abetted,  aided	 or  instigated	 Dr.
     Mallick in	 doing so,  and, therefore,  even  though  a
     wrong doer	 or a  sinner has  to be  punished and	also
     those who	aid, abet  or instigate	 them but  not those
     regarding whom only a doubt existed.10.  About 2500	 persons could	have been  appointed by	 Dr.
     Mallick and  as there  was material  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 the	 appellants,
     whose number  is 1363,  may be  among  those  who	were
     regularly appointed.Consequently  in	view  of   the	aforesaid   findings
Hansaria, J.  was inclined  to hold  that justice  had to be
tempered with  mercy in	 the light  ofArticle	 21of	 the
Constitution of	 India and  as it was doubtful whether these
1363 appellants	 could be  said	 to  have  been	 irregularly
appointed, termination	orders qua  them were required to be
set aside.  It was made clear by Hansaria, J., that the said
order would  not in  any way be taken advantage of except by
the 1363 appellants before the Court. As noted earlier it is
this difference	 of opinion  between the  two learned judges
constituting the  Division Bench, that has triggered off the
present proceedings before this larger Bench.Rival Contentions
     Learned counsel for the appellants vehemently submitted
that there  was ample  evidence on the record of these cases
to show	 that Dr.  Mallick was	the appointing authority and
was duly  empowered  to	 appoint  Class	 III  and  Class  IV
employees  on	the  programme	 regarding  eradication	  of
Tuberculosis which  was taken  up  as  a  part	of  20-Point
Programme in  the Planned Expenditure by the State of Bihar.
It was	further contended  that the  Government Order of 3rd
December 1980  did not	apply  to  such	 appointments.	That
looking to the urgency of the Programme the appointments had
to  be	 made  on   a  war-footing  and	 that  is  how	6000
appointments were made by Dr. Mallick in due exercise of his
authority so  that the	Tuberculosis  Eradication  Programme
could be  put on  an effective	and strong  footing. It	 was
further submitted  that these  were not	 posts born  on	 any
regular cadre in State Service and consequently the detailed
method of  recruitment for  filling up	vacancies for such a
Programme was  not required  to be  followed.  It  was	next
contended that	Dr. Mallick  had given due importance to the
policy	of   reservation  as  applied  by  the	State  while
effecting  these   appointments.  That	in  any	 case  these
appointments on	 ad-hoc basis  were ultimately duly approved
by the	State when the Committee constituted for the purpose
had found  them to  be valid  and accordingly  the employees
were regularised.  That thereafter  it was  not open  to the
State of  Bihar to  nullify these appointments by one stroke
of pen. Even that apart all the appointments effected by Dr.
Mallick	 which	 were  about   6000,  could  not  have	been
invalidated in	a wholesale manner which was contrary to the
basic principles  of the natural justice. That the so-called
hearing	 given	 by  the   Committee  even   prior  to	 its
constitution could  not be  said to  be a hearing at all and
hence  termination   orders  were  null	 and  void.  It	 was
ultimately submitted  that for	no  fault  of  theirs  these
employees who  had continued  for  more	 than  10  years  in
service	 in  many  cases  and  who  were  even	subsequently
promoted could	not have been removed wholesale and hence on
the principle  of fairness,  equity and	 even invoking mercy
jurisdiction of the Court they should have been continued in
service. That,	if at all, they were victims at the hands of
Dr. Mallick  but could not be said to be abetters and should
have been  dealt with  in  a  humanitarian  manner.  It	 was
contended that	on the same lines on which this Court in the
case of	 H.C. Puttaswamy & Ors. v. The Hon'ble Chief Justice
of Karnataka  High Court. Bangalore & Ors. JT 1990 (4) S 474
permitted the irregularly appointed employees to continue in
service without	 a break, the present appellants also should
be directed  to be so continued in service after giving them
reinstatement with  all consequential  benefits. Dr. Dhavan,
learned senior	counsel	 appearing  for	 the  appellants  in
appeals which  were earlier  delinked from  this  group	 but
which were  subsequently placed	 along with  the  group	 for
disposal, namely,  civil appeal	 arising  out  of  S.L.P.(C)
No.14275 of  1994 and  C.A. Nos. 10811-28 of 1995, submitted
that 8	employees in  civil appeal  arising out of S.L.P.(C)
No. 14275 of 1994 were not appointed by Dr. Mallick but were
appointed by  Dr.  Mithilesh  Kumar  and,  therefore,  their
appointments stood  on a separate footing and could not have
been nullified by adopting the general yardstick for voiding
all the	 appointments made  by Dr.  Mallick. So	 far as	 the
Civil Appeals  Nos. 10811-28  of  1995	were  concerned	 Dr.
Dhavan submitted  that appointments made by Dr. Mallick were
in  two	 phases,  the  first  phase  was  reflected  by	 the
Government Order  dated 25th  March 1983 wherein Dr. Mallick
had appointed  number of employees under the Scheme. But the
second phase  started pursuant to the Government Order dated
31st January  1987 whereunder a programme was instituted for
training Tuberculosis Attendants and Tuberculosis Assistants
and once  they were  given training  such candidates  became
entitled to  be appointed  on regular basis in the Programme
and as	they had  been so trained there was nothing wrong in
continuing them	 in service.  Dr. Dhavan also submitted that
the Tuberculosis Eradication Scheme under 20-point Programme
was entirely  a separate  Scheme undertaken  by the State of
Bihar in  collaboration with  the Central Government wherein
the expenses for the infrastructure were to be shared by the
State Government as well as Central Government and there was
no question  of any  posts  being  created  in	the  regular
service of  the State. Under these circumstances the regiour
of the	procedure of  recruitment to  State service  as laid
down by	 the Notification  to State  service as laid down by
the Notification  of 3rd  December 1980 could not be applied
to fill	 up the	 vacancies on  this Scheme.  Consequently no
fault could  be found with the manner of recruitment adopted
by Dr. Mallick especially when a Committee, duly constituted
under the  Scheme by the State Government, had cleared these
appointments and  directed regularisation  of these  ad	 hoc
employees as  initially appointed by Dr. Mallick, Dr. Dhavan
further submitted  that these  posts where  sanctioned	from
time to	 time by  State Government.  That there	 was nothing
wrong with  the regularisation of these employees and all of
them could  not have  been terminated  by one  stroke of pen
contrary to  all the basic established principles of natural
justice and  fairplay. Ultimately  it was  contended that in
any case by tempering justice with mercy these employees who
have now  become age-barred  should not	 be  thrown  out  of
service after  number of  years when they had been recruited
in service  for no  fault  of  theirs.	It  was,  therefore,
submitted by  Dr. Dhavan  towing the  line of  other learned
advocates for  the appellants  that the	 appeals  should  be
allowed	 and  all  the	prayers	 put  forward  in  the	writ
petitions filed	 in the High Court should be granted. In the
written submissions  filed in  Civil appeal Nos. 10831-10985
of  1995  it  was  submitted  that  the	 20-point  programme
announced by  Government of  India underscored	the need for
eradicating the	 dreaded  disease  Tuberculosis	 (T.B.).  In
Bihar State  alone as  per Government  information  in	1976
about half the population (current population 10 crores) was
striken with T.B. and the annual death toll was feared to be
in excess  of 1	 lakh with  3 Lakh  new cases reported every
year. It  was in this background that the S.L.P. petitioners
who numbered  581 were all appointed (initially ad-hoc/daily
wagers) in  Class III  and Class IV posts in connection with
the T.B.  Eradication programme	 in the	 State of Bihar from
the year  1980 onwards and were regularised on various dates
thereafter (p. 146-166 S.L.P. paper book). By the additional
affidavit dated	 4.9.1994 particulars  of  the	petitioners,
their dates  of ad-hoc/daily-rated  appointments  and  their
dates of  regularisation, and  (in  many  cases)  subsequent
promotion have	been set  out (pages  146-169  S.L.P.  paper
book). It  was submitted  that the  initial appointments and
regularisation of  these employees were valid and proper. It
was next  submitted that  by a	letter dated 25th March 1988
the Joint  Secretary (Health)  confirmed and  appointed	 Dr.
A.A.  Mallick	as  ex-officio	Chairman  of  the  Selection
Committee and  by a directive dated 24th July 1984 the Joint
Secretary had  directed the  said Dr.  Mallick to regularise
the appointments  made by him and to the same effect was the
subsequent letter  dated 17th  October 1984 to the Chairman,
T.B. Hospital  directing regularisation of the daily wagers.
In short similar contentions were sought to be raised in the
written submissions  as were  advanced by  learned advocates
appearing for other appellants.Shri  Singh,   learned  counsel   appearing   for	 the
respondent-State on  the other	hand submitted	that all the
initial appointments  on ad hoc or daily-rated basis made by
Dr. Mallick  were patently  unauthorised and illegal for the
simple reason  that though there were in all 2500 sanctioned
posts, Dr. Mallick for the reasons best known to him thought
it fit	to appoint 6000 Class III and Class IV employees. He
threw the  established procedure  for  recruitment  of	such
employees to  the winds	 and  in  a  most  arbitrary  manner
adopting a  policy  of	'pick  and  choose  appointed  these
persons. These	appointments were not backed up by financial
budgets. They  were totally  unauthorised and could not have
been countenanced at all. As there was nothing to show as to
who could  be fitted  in against  the sanctioned  posts	 the
State was  justified on	 the recommendation  of the  Enquiry
Committee to set aside all these appointments which were ex-
officio contrary  to the  established norms  of recruitment.
That as	 these appointments were illegal and void from their
inception there was no question of regularising them and the
so-called regularisation was wholly arbitrary, null and void
and of	no legal effect. That ample opportunity was given to
these employees	 to put forward their contentions before the
committee. Public  notices were	 given inviting them to have
their say  be submitting  all  necessary  datas	 before	 the
Committee. Not	only that  but even  987 persons  did appear
before the  committee. Therefore,  there was  no question of
violation of  principles of  natural justice.  It  was	next
contended by  Shri  Singh  that	 there	is  no	question  of
tempering justice  with mercy  s all  these incumbents	were
illegally  appointed   by  Dr.	 Mallick  and  that  it	 was
impossible to  decide in the absence of relevant material or
data on	 record as  to who were senior enough to be adjusted
against the sanctioned 2500 posts out of the 6000 employees.
Hence the  only solution  to the  problem was to nullify all
the appointments  and to  start on a clean slate de novo. In
reference to  the contentions  of learned  counsel  for	 the
appellants placing  reliance on	 decision of  this Court  in
H.C. Puttaswamy	 (supra) it  was submitted that in that case
the initial  appointments by  the Chief Justice of Karnataka
High Court  were not  illegal or  unauthorised as  the Chief
Justice had  enough financial  power to create any number of
posts on  the High Court establishment. That what was voided
was the	 method by which the employees recruited on the High
Court establishment  were subsequently	transferred  to	 the
establishments	of   subordinate  courts   and	under  these
peculiar circumstances	the  appointees	 were  permitted  to
continue in  service without break. That in the present case
though Dr.  Mallick was	 authorised to	recruit staff on the
Tuberculosis Eradication  Scheme, as  there were  only	2500
sanctioned posts, the wholesale appointments of 6000 persons
made  by  him  were  clearly  illegal  and  an	exercise  in
futility. It was next contended that even though these posts
may not	 be posts  born on  the regular	 cadres in the State
service they  were certainly  to  be  vacancies	 which	were
required to be supported by sufficient financial budgets and
unless	there	were  vacancies	  covered  by	the  planned
expenditure budgeted  for the  purpose, no such appointments
could be effected. Under these circumstances such appointees
who were  illegal appointees  from the	very beginning could
not have  been regularised. So far as the submissions of Dr.
Dhavan were  concerned it  was submitted  that there were no
two phases  in which  appointments were made by Dr. Mallick.
So far	as he  was concerned  there was	 only one  phase  of
recruiting persons  at his  whims and  fancies on  vacancies
which did  not really  exist and whatever training was given
to these employees also remained an exercise in futility. So
far as	8 employees  covered by	 Civil Appeal arising out of
S.L.P. (C) No. 14275 of 1994 were concerned it was submitted
that  Dr.  Mithilesh  Kumar  was  also	directed  to  effect
appointments under  instructions of  Dr. Mallick  and  hence
their appointments  also stood	on the same footing on which
direct appointees  of  Dr.  Mallick  stood  and,  therefore,
suffered  from	the  same  vitiating  consequences.  It	 was
accordingly submitted  by Shri	Singh that  the appeals were
required to be dismissed.In the  light of  the aforesaid  rival contentions	 the
following points arise for our determination:Points for determination1.   Whether the  appointments of  Class III  and  Class  IV
     employees on  the Tuberculosis  Eradication Scheme as a
     part of 20-Point programme were legal and valid.2.   Whether the confirmation of these employees was legally
     justified.3.   Whether principles	 of natural  justice  were  violated
     while terminating	services of all these 6000 employees
     appointed by Dr. Mallick.4.   What relief, if any, can be granted to the appellants.We shall deal with these points seriatim.Point No. 1So far  as the  initial appointments  of 6000 Class III
and Class  IV employees	 by Dr. Mallick are concerned it has
to  be	 kept  in   view  that	Dr.  Mallick  was  Director,
Tuberculosis Centre  at Patna.	Eradication of	tuberculosis
was taken  up as  a part  of 20-Point  Programme  under	 the
Planned Expenditure.  The activities  of the  Programme were
extended to  various districts.	 It cannot  be disputed that
Dr. Mallick  was the  appointing authority for these classes
of employees who had to work on the Scheme. He was duly made
Chairman of the Selection Committee constituted by the Bihar
State Government.  The Committee  consisted of	Dr. Mallick,
Assistant  Director   of  Pilaria   and	 a   senior  officer
representing   Scheduled   Castes/Scheduled   Tribes.	This
Committee was  entrusted with  the task	 of recruiting	2250
Class III  and Class  IV employees. These posts were created
to implement  the Scheme  in addition  to 800-900  staff  in
Patna Centre  in all categories. It goes without saying that
the budgeted  expenditure for  recruitment of 2250 employees
on these  sanctioned posts  was a  planned  expenditure.  As
these were  the only  sanctioned posts	under the  Scheme it
passes one's  comprehension as	to  how	 Dr.  Mallick  could
persuade himself  to recruit  6000 employees  on these	2250
sanctioned posts.  Learned counsel  for	 the  appellants  in
written submissions  tried to  urge  that  there  were	more
sanctioned posts  while the learned counsel for the State of
Bihar  tried  to  assert  that	Dr.  Mallick  had  appointed
approximately 7000  persons. But  as both the learned judges
constituting the  Division Bench,  namely, K.  Ramaswamy, J.
and Hansaria,  J. proceeded  on	 the  accepted	position  on
record	that   Dr.  Mallick  unauthorisedly  appointed	6000
employees on  the sanctioned  2250 posts  we will proceed on
that basis.  It becomes, therefore, clear that at least 3750
employees were	drafted in the Scheme by Dr. Mallick without
there being  any vacancies  to	receive	 them.	Under  these
circumstances their initial entry must be held to be totally
unauthorised, incompetent  and void.  It is  axiomatic	that
when these  recruitments were not supported by any budgetary
grants there  will be no occasion to make available finances
to meet	 their salary  expenses. Even  apart from  that, Dr.
Mallick threw  all the	discretion to  the winds,  acted  as
monarch of  what he surveyed and in a most arbitrary fashion
adopting the principle of 'pick and choose', recruited these
6000 employees	completely violating  the established  norms
and  procedures	 for  recruiting  Class	 III  and  Class  IV
employees as  laid down by the State government from time to
time. We  agree with  the contention  of Shri Singh, learned
counsel for the respondent-State that all these recruitments
made by Dr. Mallick were arbitrary, capricious and were null
and void  as he	 did violence  to the  established norms and
procedures for	recruiting such	 employees, Dr.	 Mallick was
not giving  appointments to  these employees  on his private
establishment.	He  was	 recruiting  them  in  a  government
Programme which	 was supported	by Planned Expenditure. Such
recruitment to	Public services could not have been effected
in such	 a cavalier  fashion in	 which it  was done  by	 Dr.
Mallick. We  are not  in a position to persuade ourselves to
agree  with  the  contention  of  learned  counsel  for	 the
appellants that	 the Government	 Order of  3rd December 1980
would not  apply to  these recruitments as this was a unique
and distinct Scheme under 20-Point Programme. Even if it was
a scheme  under 20-Point  Programme it was to be carried out
as per	planned expenditure. It is obvious that when planned
expenditure is	required to  be incurred, budgetary sanction
is a  sine qua	non. unfortunately  Dr. Mallick treated this
Scheme as  his private	property. The  device adopted by him
was in	flagrant violation  of all  norms of  administrative
procedure known to law. In this connection we may profitably
refer to  Government Order  dated 3rd December 1980 which is
found at  page 344  of the  Paper Book	in Civil Appeal Nos.
10758-59 of  1995. This	 Government  Order  deals  with	 the
procedure of  appointment to  Class-3  Posts  in  Government
offices. There	is a  similar Government  Order of even date
for recruitment of Class-4 servants. That is annexed at page
352 in	this very Paper Book. it is issued by the Department
of Personnel  and Administrative  reforms, Bihar  State.  As
this recruitment  was done  in a centralised manner at Patna
for  different	 districts  under  Tuberculosis	 Eradication
Scheme to  be carried  out in  all the districts in a phased
manner, we  may refer  only to	that part of this Government
Order which  referred to  the procedure	 to be	adopted	 for
recruitment in Secretarial Services at Patna. it has been in
terms laid  down that  in the  Secretariat and	its attached
offices, a Selection committee shall be constituted. It will
be chaired  by the  head of  the concerned establishment and
one of	the members  of this  committee will  be any  senior
officer as nominated by the Head of the Establishment. Other
members of the committee will be officers belonging to SC/ST
working in  the same  department. As per this G.O. so far as
recruitment to Class III posts is concerned a merit list has
to be  prepared on  the	 basis	of  marks  obtained  by	 the
candidates at school or college examinations and appointment
to  the	  vacant  posts	  will	be  made  according  to	 the
instructions enclosed  with the	 concerned  Resolution.	 The
vacancies will	have  to  be  communicated  to	the  nearest
employment  Exchange   of  respective	areas  wherein	 the
concerned  offices   exist.  so	  far  s   G.O.	  concerning
recruitment to Class IV servants is concerned, the Committee
appointed for  the purpose  has to publish the advertisement
through	 the   Employment  Exchange  as	 per  the  direction
contained in  appointment Department Circular No. 8160 dated
21st   June    1966.   Government   instructions   regarding
reservation for	 SC/ST also have to be adhered to. It is not
in dispute that none of these instructions and the procedure
laid down  for recruiting  Class III  and class IV employees
were followed  by Dr.  Mallick while  recruiting adhoc/daily
wage employees	at the	initial stage  in  the	Tuberculosis
Eradication Scheme supervised and monitored by him. However,
learned counsel for the appellants vehemently submitted that
these two Government orders would not apply and what applied
for these  recruitments was  the government Resolution dated
25th March  1983. It  is found at page 404 of the Paper Book
in these  civil appeals.  The said  Resolution of  the Bihar
Government  in	 the  Health  Department  issued  under	 the
signature of Joint Secretary to the Government shows that in
super  session	 of  all  the  previous	 orders,  the  State
Government had decided to constitute Selection Committee for
regular appointment against the posts of class III and class
IV under  Malaria, filaria  and T.B. Programme. The officers
noted against  their names  would function  as Chairman	 and
members. A  mere look  at  this	 Resolution  shows  that  it
indicates the  appointing authorities  who have	 to  recruit
staff on  the concerned	 programme  mentioned  therein.	 Dr.
Mallick would necessarily, therefore, be the Chairman of the
Tuberculosis Control  Programme Recruitment  Committee.	 But
the very Resolution indicates that recruitment had to be for
regular appointments  to be made by the Selection committees
to Class  III and  Class IV posts under Malaria, filaria and
T.B. Programme.	 Therefore, recruitment	 was to be done in a
regular manner	against available  posts. It  never  gave  a
blanket power  to Dr. Mallick to create new posts which were
not sanctioned	and to	make recruitment thereon. Nor did it
give any  authority to	throw the  recruitment procedure for
recruiting such	 class III  and Class  IV employees  to	 the
winds and  to make recruitment in an arbitrary manner at his
whims and  fancies. Nowhere  this Resolution  indicates that
the earlier  Government Orders	laying	down  the  procedure
regarding recruitment  to Class	 III and Class IV posts were
to be  given a	go-by. Consequently  the Resolution  of 25th
March 1983  has to  be read along with the government Orders
dated  3rd   December  180   and  not	de  hors  them.	 The
supersession of	 the previous  orders as contemplated by the
Resolution of  25 March	 1983 was only to the limited extent
that  the   Selection  committee   mentioned  in   the	said
Resolution will be the committee for appointing such persons
on  the	  concerned  programmes	  and  to  that	 extent	 the
recruiting authority  as mentioned in the earlier Government
Orders would  stand superseded	but it did nothing more than
that. The  procedure for  recruitment, however, would remain
the same  even for the newly constituted Selection committee
as per	the resolution of 25th March 183. consequently it is
not possible to agree with the contention of learned counsel
for the	 appellants that  this Resolution of 25th March 1983
displaced and  gave a  send-off to the recruitment procedure
laid down  by the Government Orders of 3rd December 1980. It
is also equally not possible to agree with the contention of
learned counsel	 for the  appellants that  s the recruitment
was to	be made on Tuberculosis Eradication Scheme under 20-
Point Programme	 and the appointments were not to be made to
posts on  any regular  order  of  Bihar	 State	Service	 the
recruitment procedure laid down by earlier government Orders
of 3rd	December 1980  would not stand attracted. It is easy
to visualise  that though the vacancies or posts as the case
may be,	 may not  be in	 the regular Bihar State Service but
would be in the concerned programmes or schemes, nonetheless
there  would  have  to	be  recruitment	 to  the  sanctioned
vacancies necessarily  backed up  by  the  financial  budget
support, to  be made  available by the State as per 20-Point
Programme under its liability to contribute towards the same
along with  Central Government.	 It is axiomatic that unless
there is  vacancy there	 is no	question of  filling it	 up.
There cannot  be an  employee  without	a  vacancy  or	post
available on  which he	can work  and can be paid as per the
budgetary sanctions.  It appears  that Dr. Mallick suffering
from wrong  nations of	power and  authority under  the said
Government Resolution  and without  bothering  to  find	 out
whether	 there	were  vacancies	 or  not  under	 the  Scheme
indulged in self-help to recruit as many class III and Class
IV employees as suited him and the result was that he loaded
a dead	weight of  burden of  these employees  on the  State
exchequer  by	resorting  to	a  completely	unauthorised
exercise. The  State authorities  were justified in refusing
to release  salaries for  paying this  unauthorised army  of
staff which  represented a  host of  unwelcome guests.	They
were all  persons non  grata and  were not  employees in the
real sense of the term. It must, therefore, be held that the
appointments of 6000 employees as made by Dr. Mallick in the
Tuberculosis Eradication  Scheme were  ex facis	 illegal. As
they were  contrary to all recognised recruitment procedures
and were  highly arbitrary,  they were	not binding  on	 the
State  of   Bihar.  The	  first	 point	 for  determination,
therefore, will have to be answered in the negative.Point No. 2So	 far  as  the  question	 of  confirmation  of  these
employees whose	 entry	itself	was  illegal  and  void,  is
concerned. It  is to  be noted that question of confirmation
of regularisation  of  an  irregularly	appointed  candidate
would arise  if the  concerned candidate  is appointed in an
irregular manner  or on	 adhoc basis  against  an  available
vacancy which  is already  sanctioned. But  if	the  initial
entry  itself	is  unauthorised  and  is  not	against	 any
sanctioned vacancy,  question of  regularising the incumbent
on such	 a non-existing	 vacancy  would	 never	service	 for
consideration and  even if  such purposed  regularisation or
confirmation is	 given it  would be an exercise in futility.
It would amount to decorating a still-born baby. Under these
circumstances there was no occasion to regularise them or to
give them  valid confirmation.	The  so-called	exercise  of
confirming these  employees, therefore,	 remained a nullity.
Learned counsel	 for the appellants invited our attention to
the  chart  showing  the  details  of  appointments  of	 the
concerned appellants  as found at Annexure XXII at pages 243
to 255 of the Paper Book and also as a specimen a subsequent
order of  confirmation as  found at  page 256 in the case of
Ashwani Kumar.	It  was	 submitted  that  such	confirmation
orders were  also given	 to number  of	 employees who	were
initially appointed  as daily  wagers/T.B. Assistants by Dr.
Mallick.   Our attention  was also  invited to the letter of
Joint  Secretary   Shri	 Anant	 Shukla	  written   to	 the
Superintendent, T.B.  Hospital,	 Koelwar,  Bhojpur  on	17th
October 1984 which is found as Annexure-X at page 147 of the
Paper Book to show that steps were taken for ratification of
the orders of appointment of the daily wage employees as per
the direction  of  Deputy  Director,  T.B./Health  Services,
Bihar. As we have seen earlier when the initial appointments
by Dr.	Mallick so far as these daily wagers were concerned,
were illegal  there was	 no question  of  regularising	such
employees and  no right	 accrued to  them as  they were	 not
confirmed on  available clear vacancies under the Scheme. It
passes one's comprehension as to how against 2500 sanctioned
vacancies  confirmation	  could	 have  been  given  to	6000
employees. The	whole exercise	remained in  the realm of an
unauthorised adventure.	 Nothing could	come out of nothing.
Ex nihilo  nihil fit. Zero multiplied by zero remained zero.
consequently no	 sustenance can	 be drawn  by the appellants
from these confirmation orders issued to them by Dr. Mallick
on the	basis of  the directions  issued  by  the  concerned
authorities  at	 the  relevant	time.  It  would  amount  to
regularisation of back door entries which were vitiated from
the very  inception of	learned counsel	 for appellants that
the vacancies  on the  Scheme had nothing to do with regular
posts. Whether	they are  posts or  vacancies they  must  be
backed up  by budgetary	 provisions so	as  to	be  included
within the  permissible infrastructure	of the	Scheme.	 Any
posting which  is dehors  the budgetary	 grant and on a non-
existing vacancy  would be outside the sanctioned scheme and
would remain  totally unauthorised. No right would accrue to
the incumbent of such an imaginary or shadow vacancy.In	 this  connection  it  is  pertinent  to  note	that
question of  regularisation in	any  service  including	 any
Government service  may arise in two contingencies. Firstly,
if on  any available  clear vacancies  which are  of a	long
duration appointments are made on ad hoc basis or daily wage
basis by  a competent  authority and are continued from time
to time	 and if	 it is	found that  the concerned incumbents
have continued to be employed for a long period of time with
or without  any artificial  breaks, and	 their services	 are
otherwise required  by the institution which employs them, a
time may  come in  the service	career of such employees who
are continued on ad hoc basis for a given substantial length
of time	 to regularise	them so that the concerned employees
can give their best by being assured security of tenure. But
this would  require one pre-condition that the initial entry
of such	 an employees  must be	made  against  an  available
sanctioned vacancy  by following  the rules  and regulations
governing such	entry. The second type of situation in which
the question  of regularisation	 may arise would be when the
initial entry  of the  employee against an available vacancy
is found  to have  suffered from some flow in the procedural
exercise though the person appointing is competent to effect
such initial  recruitment and  has  otherwise  followed	 due
procedure for such recruitment. A need may then arise in the
light of  the exigency	of  administrative  requirement	 for
waiving such  irregularity in  the  initial  appointment  by
competent authority  and the  irregular initial	 appointment
may be	regularised and	 security  of  tenure  may  be	made
available to  the concerned  incumbent. But  even in  such a
case the  initial entry	 must not  be found  to	 be  totally
illegal or in blatant disregard of all the established rules
and regulations governing such recruitment. In any case back
door entries  for filling  up such  vacancies have got to be
strictly avoided.  However,  there  would  never  arise	 any
occasion for  regularising the	appointment of	an  employee
whose initial entry itself is tainted and is in total breach
of the	requisite procedure  of recruitment  and  especially
when there  is no  vacancy on which such an initial entry of
the candidate  could ever  be effected.	 Such an entry of an
employee would remain tainted from the very beginning and no
question of  regularising such an illegal entrant would ever
survive for  consideration, however competent the recruiting
agency may  be. The  appellants fall in this latter class of
cases. They  had no  case for  regularisation  and  whatever
purported  regularisation   was	 effected  in  their  favour
remained an  exercise in  futility. Learned  counsel for the
appellants, therefore,	could not justifiably fall back upon
the orders  of regularisation  passed in their favour by Dr.
Mallick. Even otherwise for regularising such employees will
established procedure  had to  be followed.  In the  present
case it	 was totally  by-passed. In  this connection  we may
profitably refer  to Government	 Order dated  31st  December
1986 to	 which our  attention was invited by learned counsel
for the	 appellants. The  said government  Order is found in
the additional	documents submitted in C.A. Nos. 10758-59 of
1995 at	 Annexure-IV.  Secretary  to  Government  of  Bihar,
Health Department,  by communication  dated  31.12.1986	 had
informed all  regional deputy  directors,  health  Services;
Tuberculosis civil  surgeon-cum-Chief Medical  officer;	 and
other  concerned   authorities	in   connection	  with	 the
compliance and	implementation	of  the	 orders	 passed	 and
instructions issued by Deputy director (Tuberculosis) Bihar,
Patna under the Tuberculosis control Programme covered under
the  20-Point	programme.  It	 was  stated   in  the	said
Communication that steps will be taken to fill up sanctioned
Third and  fourth Grade	 posts as soon as possible according
to the	prescribed procedure and all possible efforts should
be made to achieve the fixed targets in a planned and phased
manner. Even  this letter  clearly indicates  that the posts
had to	be filled  up by following the prescribed procedure.
Despite	 all   these  communications   neither	the  initial
appointments nor  the confirmations  were done	by following
the prescribed	procedure. On  the contrary all efforts were
made to	 bypass the recruitment procedure known to law which
resulted in  clear violation ofArticles 14and16(1)of the
Constitution of	 India both  at the initial stage as well as
at the	stage of confirmation of these illegal entrants. The
so-called regularisations  and confirmations  could  not  be
relied on  as shields  to cover	 up initial illegal and void
actions or  to perpetuate the corrupt methods by which these
6000 initial  entrants were  drafted in	 the Scheme  by	 Dr.
Mallick.  For  all  these  reasons,  therefore,	 it  is	 not
possible to agree with the contention of learned counsel for
the appellants	that in	 any case the confirmations given to
these employees	 gave them  sufficient cloak  of  protection
against future	termination from  services. On	the contrary
all the	 cobwebs created  by Dr. Mallick by bringing in this
army of	 6000 employees	 under the  Scheme  had	 got  to  be
cleared lock,  stock and barrel so that public confidence in
government  administration   would  not	 get  shattered	 and
arbitrary actions would not get sanctified.We	 may  also  at	this  stage  to	 additional  written
submissions filed  on behalf  of the appellants in C.A. Nos.
10831-10985 of	1995. In  these written submissions reliance
is placed  on the judgment of one of us, A.M. Ahmade, J. (as
His  Lordship	then  was),   in  the	case  of   Jacob  M.
Puthuparambil &	 Ors. etc.  etc. v. Kerala Water Authority &
Ors. etc.  etc. (1991) 1 SCC 28. In the said decision it was
held that  when ad  hoc employees who were continued for two
years or more (in some cases one year or more) were entitled
to be  regularised subject to availability of vacancies. The
aforesaid decision  cannot be of any avail to the appellants
for the	 simple reason	that once we find that there were no
vacancies  at	all  on	  which	 the   appellants  could  be
regularised there  was no  occasion  to	 undertake  such  an
exercise  especially  when  the	 initial  entries  of  these
appellants in  the service  were found	to  be	illegal	 and
vitiated.Before we	leave  discussion  on  point  no.  2  it  is
necessary to  mention two  additional aspects placed for our
consideration by Dr. Dhavan in support of the appellants. In
Civil Appeal Nos. 10811-28 of 1995 Dr. Dhavan submitted that
there were  two phases	in connection  with recruitment	 for
Tuberculosis Eradication  Programme. One  phase was  as	 per
Government Order of 25th March 1983 wherein the committee of
recruitment headed  by Dr.  Mallick was	 entrusted with	 the
task  of  recruitment.	But  the  second  phase	 started  on
31.1.1987 when	Joint  Secretary  to  Government  of  Bihar,
Health Department  addressed a	communication to  the Deputy
Director, Tuberculosis,	 Dr. Mallick. The said communication
is found as Annexure V to the Paper Book in civil Appeal no.
10811-28 of  1995. it  mentions that  the signatory  to	 the
communication was  directed to	say that keeping in view the
necessity of one T.B. Assistant and T.B. Attendant  for each
of the	627 Primary  Health centers,  a	 training  programme
should be launched for training the candidates in proportion
to the	number of primary Health centres, which will have to
compulsorily participate  in the final examination conducted
by the	Director,  State  T.B.	Demonstration  and  Training
Centre and  shall have to pass such examination so that they
may be	posted in  the Primary	Health centres	in order  of
merit from  the list of trained candidates after approval of
sanction of  a posts by the Government in phases. Dr. Dhavan
contended that	pursuant to  the said  direction Dr. Mallick
appointed number  of candidates under the Training Programme
and these  candidates  were  trained  for  being  ultimately
absorbed in primary health centres under the Scheme. We fail
to appreciate  how this	 communication which  is  styled  as
beginning of  the second phase by Dr. Dhavan, can change the
situation. Even	 though some  training was  given under	 the
direction  of  the  Government	to  certain  candidates	 the
recruitment made  by Dr.  Mallick in excess of the available
vacancies would	 still remain  unauthorised and	 illegal and
cannot improve	the situation  for the	said trainees in any
manner. Even  after training  when recruitment is to be made
it must	 be made  on available vacancies or sanctioned posts
under the  Scheme and that too after following due procedure
of  recruitment.   That	 was  never  done  by  Dr.  Mallick.
Therefore, the	so-called second  phase cannot	improve	 the
position for  the appellants  in any manner. Dr. Dhavan then
submitted that	at least  so far  as 8	appellants in  Civil
Appeal arising	out of	S.L.P  (C)  No.	 14275	of  1994  ar
concerned, they	 were not  appointed by Dr. Mallick but were
appointed by  Dr. Mithilesh  Kumar. In	para 3 of S.L.P. (C)
No. 14275  of 1994  it has  been stated	 that one letter was
issued by  the then  Deputy Director  (T.B.), Dr. Mallick on
23rd November  1989 by	which  the  Civil  Surgeon-cum-chief
Medical Officer, Madhubani was directed to absorb petitioner
no. 2  according to  his qualification	against a  Class III
post and  accordingly he  was appointed. At page 83 is found
the recital  as regards	 petitioner nos.  7 and	 8,  to	 the
effect that  with respect  to them  Dr.	 Mallick,  the	then
Deputy Director	 (T.B.) Health	Services issued	 one  letter
dated 12th  January 1990  recommending for  their absorption
against class III posts according to their qualification and
that is	 how they  were appointed by Dr. Mithilesh Kumar. It
was next  submitted with  reference to	paragraph 13  of the
same  special  Leave  Petition	that  with  respect  to	 the
appointments which were made by then Civil Surgeon-cum-Chief
Medical Officer,  Madhubani, like the petitioners a separate
letter was  issued on  6th March  1993 wherein	the incharge
Medical Officers  of Primary health Centres were directed to
issue  show   cause  notices   to  such	 persons,  who	were
appointed/absorbed by  the order  of the then civil Surgeon-
cum-Chief Medical  Officer, but such show cause notices were
never issued. In our view these averments cannot improve the
case  of   the	appellants.   Even  though  these  concerned
petitioners  might  have  been	actually  appointed  by	 Dr.
Mithilesh Kumar	 their appointments  were recommended by Dr.
Mallick who,  therefore, remained  the prime  mover in their
cases also  as in cases all other appellants. It is the hand
of Dr.	Mallick that  brought them  under  the	Tuberculosis
Eradication Scheme  and but  for him they would not have got
their entry.  Therefore, actual appointments might have been
made by	 Dr. Mithilesh	Kumar but the real appointing agency
remained that  of Dr.  Mallick. Consequently the effort made
by Dr.	Dhavan to  separate their  cases from  the cases  of
other appellants  who are  tracing their direct linkage with
Dr. Mallick remained an abortive one. Similarly whether show
cause notices  were issued  to them  or not  also  would  be
besides the  point as  we will see while deciding point no.3
that public  notices were  given to appointees to have their
say before  the competent authority in connection with their
appointments and  basic principles  of natural	justice were
followed in  these cases  also. The second point, therefore,
is answered in the negative. This takes to the consideration
of Point No.3 for determination.Point No.3
     So	 far  as  the  principles  of  natural	justice	 are
concerned it  has to be stated at the outset that principles
of natural  justice cannot  be	subjected  to  any  straight
jacket formula.	 They will  very from  case  to	 case,	from
circumstance  to   circumstance	 and   from   situation	  to
situation. Here is a case in which 6000 employees were found
squatting  in	the  Tuberculosis   Scheme  controlled	 and
monitored by  Dr. Mallick  for the entire State of Bihar and
there  was   no	 budgetary   sanction  for  defraying  their
expenditure. At	 least our  of the  6000 employees  as	seen
earlier 3750  were totally  unauthorised and  were squatting
against non-existing vacancies. A grave situation had arisen
which required immediate action for clearing the stables and
for  eradicating   the	evil   effects	of   these  vitiated
recruitments so	 that the  Tuberculosis	 Eradication  Scheme
could be put on a sound footing. When such a grave situation
had arisen  and when  matters had  gone up to the High Court
wherein the  State was	directed to  appoint a	Committee to
thoroughly investigate the entire matter, the State of Bihar
had to	appoint a committee to scrutinies these appointments
and to	filter them  as directed by the High court of Patna.
For undertaking the said exercise public notices were issued
by the	Director-in-Chief, Health  Services, Bihar, Patna by
Communication dated  4th July  1992. The  said communication
which s found at page 147 of the Paper Book recites that Dr.
Mallick, the  then Deputy Director (T.B.) presently retired,
issued orders  of appointment/posting/transfer/absorption on
a large	 scale against	the Class  III and Class IV posts in
the T.B.  Eradication Programme	 under	the  Directorate  of
Health	Services   without  following	the  procedure	 for
appointments/without publication  of  advertisement  and  by
openly violating  reservation  policy  in  contravention  ofArticle 16.While distributing such appointment letters, Dr.
Mallick in  many cases did not even care to see whether even
the posts  were sanctioned or not. Reference was made to the
order passed  by High  Court of Patna which had directed the
Government  to	 require  in  all  such	 matters  and  after
considering the representations, pass a final order within 6
weeks. It  was in  the	light  of  the	Patna  High  Court's
direction that	the Government called upon all the concerned
persons to  submit their representations, show cause replies
before the signatory to the communication positively by 25th
July 1992  so that appropriate decision might be taken after
examining the  legality of  their appointments. Six types of
informations were sought for from the concerned persons. The
employees appointed  from 1980	to 1987	 were called upon to
appear before the Director in Chief, Health Services, Bihar.
Patna in his office situated at Vikas Bhawan, Secretariat at
11.00 a.m.  positively with  a copy  of show-cause  reply on
different dates	 ranging  from	17th  august  1992  to	19th
September 1992	and the employees appointed from May 1988 to
December 1988  and from	 January 1989  to December 1989-1990
were to	 appear in  person on 29th September 1992. It is not
in dispute that pursuant to the aforesaid communication duly
published, out	of 6000	 employees who were the creatures of
Dr. Mallick,  987 did  appear. The  appellants in  C.A. Nos.
10758-59 of  1995 and  others did  submit details  of  their
service bio-data  to the concerned authority as per the said
communication. A sample copy of the show cause reply sent to
the Director-in-Chief,	Health Services,  in response to the
said communication  is at  page 151 of the Paper Book. Query
wise replies are found in the said return. It was thereafter
that a written order was passed by Director-in-chief on 12th
November  1992	 appointing  a	committee  of  officers	 for
scrutinising these  replies and	 for coming  to the  correct
conclusion  in	the  light  of	the  data  supplied  by	 the
concerned  employees   who  remained  present  for  personal
hearing before	the authority  in response  to	the  earlier
communication. The said order dated 12th November 1992 is at
page 402  of the  Paper Book.  it clearly recites that after
due consideration  of all  the	facts,	the  Government	 had
decided that  the validity  of all  the appointments made by
Dr. Mallick  after 1.1.1980  should be examined. Accordingly
all the concerned officials were given opportunity to submit
show cause  replies  before  the  director-in-chief,  Health
Services Bihar,	 Patna by  25.7.92, after getting the notice
to show	 cause advertised  on 4.7.92  and  also	 were  given
opportunity for personal hearing after fixing separate dates
for officials  appointed year  wise from  1980 till  August-
September 1992.	 A committee  of the  officers mentioned  in
paragraph 4  was appointed  to review the show cause replies
mentioned in  paragraph 3 and information received in course
of personal  hearings.	The  committee	had  to	 review	 the
merits/demerits of  the appointments  under question  in the
light of policy and procedures prescribed by Government from
time to	 time for  appointment in  Public Service and submit
its recommendation  to the  Government. the  learned counsel
for the appellants submitted that appointment of this review
committees  was	  after	 the  personal	hearing	 before	 the
Director-in-Chief,  Health   Services,	Bihar,	 Patna	and,
therefore, this	 violated the  basic principles	 of  natural
justice.  It  is  difficult  to	 agree.	 all  the  concerned
appointees whose  appointments by  Dr. Mallick	were  to  be
filtered were  given personal  hearing by  the	Director-in-
Chief. The  data which	they had to submit was duly received
and  it	  was  thereafter  that	 the  Review  committee	 was
entrusted with	the task of going through the data submitted
by these  employees along  with their  replies and their say
during the  personal hearing.  Therefore,  the	said  review
Committed was  only to	scrutinies the data collected during
the  personal	hearing	 by  the  Director-in-Chief,  Health
Services  and  on  that	 bases	the  Committee	decided	 the
question of  legality and  validity of	their  appointments.
Thus the  basic principles of natural justice cannot be said
to have been violated by the Committee which ultimately took
decision on  the basis	of the personal hearing given to the
concerned employees  and after	considering what they had to
say regarding  their appointments. Whatever was submitted by
the concerned  employees was  taken into  consideration	 and
than the  committee came  to a	firm decision  to the effect
that  all  these  appointments	made  by  Dr.  Mallick	were
vitiated from  the inception  and were	required to  be	 set
aside and  that is  how the impugned termination orders were
passed against	the appellants. On the facts of these cases,
therefore, it  cannot be  said that  principles	 of  natural
justice were  violated or  full opportunity was not given to
the concerned  employees to  have their	 say in	 the  matter
before their  appointments  were  recalled  and	 terminated.
Point no.3 is, therefore, is answered in the negative.Point No.4
     Now is the tie for us to take stock of the situation in
the light of our answers to the aforesaid three points. As a
logical corollary to these answers the appeals are liable to
be dismissed  as the  decision of the High Court is found to
be well	 sustained. The	 submission made  by learned counsel
for the	 appellants to	sustain services of these appellants
on humanitarian	 grounds cannot	 be countenanced.  When 6000
appointees are	found to  have been  illegally loaded on the
State exchequer by Dr. Mallick and when there were only 2250
sanctioned posts,  in the  absence of  clear data  as to who
were the  senior most  and which  were the  sanctioned posts
available at  the relevant  time against which they could be
fitted	it   would  be	 impossible  to	  undertake  even  a
jettisoning operation  to off  load the	 removable  load  of
excess employees  amounting to	3750  by  resorting  to	 any
judicial surgery.  Once the  source of	their recruitment is
found to be tainted all of them have to go by the board. Nor
can we	say tat	 benefit can  be made available only to 1363
appellants  before  us	as  the	 other	employees  similarly
circumscribed and  who might  not have	approached the	High
Court or  this Court  earlier and  who may be waiting in the
wings would also be entitled to claim similar relief against
the State  which has  to give equal treatment to all of them
otherwise  it	would  be   held  guilty  of  discriminatory
treatment which	 could not be countenanced underArticles 14and16(1)of	 the   Constitution  of	 India.	 Everything,
therefore, must	 start on  a clean slate. Reliance placed by
learned counsel	 for  the  appellants  on  the	doctrine  of
tempering justice  with mercy  also  cannot  be	 pressed  in
service on  the peculiar  facts of these cases as mercy also
has to	be based  on justice.  The decision of this Court in
the case  of H.C.  Puttaswamy (supra)  also  can  be  of  no
assistance to  the appellants  on the  facts of	 the present
cases as  in that  case the  Chief Justice of the High Court
had full  financial powers to create any number of vacancies
on the	establishment of  the High  Court as required and to
fill them  up. There  was no  ceiling on  his  such  powers.
Therefore, the	initial entry of the appointees could not be
said to	 be unauthorised  or vitiated  or tainted. The fault
that was  found was  the manner	 in which  after recruitment
they were  passed on  to the  establishments of	 subordinate
courts. That exercise remained vitiated. But as the original
entries in  High Court	service were  not unauthorised these
candidates/employees were  permitted to be regularised. Such
is not	the present case. The initial entry of the employees
is  itself   unauthorised  being   not	against	  sanctioned
vacancies nor  was Dr.	Mallick entrusted  with the power of
creating vacancies  or	posts  for  the	 schemes  under	 the
Tuberculosis   Eradication   Programme.	  Consequently	 the
termination of	the services  of all these appellants cannot
be found  fault with.  Nor any	relief as claimed by them of
reinstatement with  continued service  can be made available
to them.However there  is one  human aspect which calls for our
attention on  the facts	 of the	 present cases.	 These	6000
employees got  employed by  Dr.	 Mallick  over	at  least  a
decade. Many  of them  served for  number of  years and	 got
confirmed. They	 would	naturally  have	 their	families  to
support. For  no  fault	 of  theirs  they  found  themselves
stranded in  life midstream.  Many might have got over aged.
As Dr.	Dhavan pointed	out, many  of them  also got trained
under the second phase of the Programme, as he would like to
style it,  pursuant to	the Government Order dated 31.1.1987
referred to by us earlier. Under these circumstances justice
would require that some effort to salvage their situation if
possible may  be made  when the	 State	undertakes  a  fresh
exercise  to   fill  up	  the  sanctioned  posts  under	 the
Tuberculosis Eradication  Programme which  has come to stay.
We are informed that tuberculosis is still not eradicated in
the State  of Bihar  and the Programme is to last for couple
of more	 years and  may be  it may  assume a  semi-permanent
status. It  was	 also  not  disputed  that  there  are	2250
sanctioned posts  or it	 may be	 that some  more  sanctioned
posts may  see the  light of  the day  in near	future. Shri
Singh learned  counsel for  the respondent-State informed us
that the  State proposes to start on a clean slate and after
following  due	procedure  of  recruitment  would  certainly
recruit Class  III and	Class IV employees on the sanctioned
vacancies and  posts which  will have  to be  filled up	 for
making the  Tuberculosis Eradication  Scheme  effective	 and
fully operative.  When that is the need of the day, it would
be  appropriate	 to  direct  the  State	 to  undertake	that
exercise at  the earliest and while doing so after following
the due procedure of recruitment and the rules governing the
same,  given   an  opportunity	to  these  6000	 unfortunate
creatures of  Dr. Mallick  to compete  for the said posts in
the future  recruitment that  may be undertaken by the State
and in the process because of the experience which they have
gathered  in  their  past  service  under  the	Tuberculosis
Programme and  the training  which they	 might have received
pursuant to the Government Order dated 31.1.1987, due weight
age  also   be	given	to  them   while  considering  their
eligibility for	 being recruited in service as and when such
future exercise	 is undertaken.	 Consequently we deem it fit
to issue the following directions to the respondent State of
Bihar in this connection :1.   Respondent-State of  Bihar may  start at the earliest a
     fresh exercise  for recruiting  Class III	and Class IV
     employees in  the	Tuberculosis  Eradication  Programme
     undertaken by the State as a part of 20-Point Programme
     on the available 2250 vacancies or even more vacancies,
     as the case may be, preferably within three months from
     the receipt of a copy of this order.2.   Towards the  said exercise	 the State  will  publish  a
     notice in	all the newspapers having circulation in the
     State inviting  applications for  direct recruitment to
     Class III	and Class  IV posts  for  filling  up  these
     vacancies in the said Programme.3.   Similarly	names  may  also  be  called  for  from	 the
     concerned Employment Exchange for such recruitment.4.   If no  statutory body composed of high-ranked officials
     for recruitment  to Class III and Class IV employees is
     in	 vogue,	 the  State  is	 directed  to  constitute  a
     committee consisting  of three  members,  viz.,  (a)  a
     member of	the Public  Service Commission; (b) a senior
     IAS officer, i.e., the Additional or Joint Secretary of
     the Health	 Department; and (c) a senior officer, i.e.,
     the Director or Additional Director of Health Services,
     to select	the  candidates.  The  Additional  or  Joint
     Secretary of Health Department shall be the Chairman of
     the Committee.5.   The respondent-State  will constitute  such a committee
     preferably within	three months  of the receipt of this
     order.6.   It would  be  open	 to  all  the  appellants  or  those
     appointed by  Dr. Mallick who might not have challenged
     their termination	orders before any competent court up
     till now, to apply for selection to the concerned Class
     III and  Class IV	posts. The  committee would in their
     cases as  first step,  verify and satisfy itself of the
     credentials  of   such  candidates	 whether  they	were
     appointed by  Dr. Mallick	and had	 worked a  least for
     three years  continuously.	 The  committee	 would	also
     satisfy  itself   that  such  candidate  or  candidates
     honestly and  meritoriously discharged  their duties as
     Class III	and Class  IV appointees,  at least  for the
     said period.7.   The committee  may fix  total number  of  marks  to  be
     obtained by  the candidates  for being  treated to have
     passed  the  selection  test.  Any	 relaxation  in	 the
     minimum  eligibility   marks  to  be  obtained  by	 the
     Scheduled Casts,  Scheduled Tribes	 and Other  Backward
     Classes candidates	 as  found  necessary  may  also  be
     decided by	 the committee.	 The committee	if satisfied
     about the	credentials and	 other	particulars  of	 the
     appellants	 or   those  appointed	by  Dr.	 Mallick  as
     mentioned in  paragraph (6) above, may allot additional
     marks to  them for each of the three years and more for
     which they	 might have  worked, at	 the rate of 2 marks
     for each completed year of continuous working, upto the
     maximum of	 6 marks,  for	each  candidate.  Candidates
     appointed	by   Dr.  Mallick  who	are  found  to	have
     undertaken	 training   pursuant   to   the	  Government
     direction dated  31.1.1987 may  be awarded 2 additional
     marks for	the training so received. Those 2 marks will
     be in  addition to	 the 6 marks which are to be awarded
     on completion  of meritorious and honest service by the
     concerned employees as mentioned above.8.   If the  concerned candidates who were earlier appointed
     by Dr.  Mallick  are  found  by  the  committee  to  be
     otherwise eligible for being appointed to Class III and
     Class  IV	 posts	as   per  the	relevant  rules	 and
     regulations and  if on  the basis of the marks allotted
     to	 them  as  aforesaid  they  become  eligible  to  be
     appointed besides	other competing	 candidates, then if
     they are  found to have become age barred the condition
     of age  for recruitment  of such  candidates should  be
     relaxed appropriately  so as to entitle such candidates
     to be considered for selection.9.   The State	Government shall  arrange  sittings  of	 the
     Selection Committee  preferably within  two months from
     the   last	  date	 prescribed   for   submitting	 the
     applications and  for  completion	of  the	 preliminary
     scrutiny of  such	applications.  The  committee  shall
     select  all   candidates  on   merits   following	 the
     prescribed procedure  in the  appropriate circulars and
     rules and shall also follow the rules of reservation as
     in vogue  and prepare  the merit list and should submit
     it to  the Government.  While  doing  so  the  eligible
     candidates who  were earlier  appointed by	 Dr. Mallick
     and who  received the  marks for their past meritorious
     service and  training as  aforesaid will  be considered
     for selection  qua the other candidates in the light of
     the weight	 age of	 the marks  as aforesaid and in that
     light the	committee will	select all the candidates on
     merits and	 will prepare  the select list of candidates
     found fit to be appointed to the concerned posts.10.  The committee  will complete  the process	of selection
     preferably within	three months  from the	date of	 its
     sittings for selection.11.  An appropriate authority or the government, as the case
     may be,  will appoint  preferably within  three  months
     from the date of the receipt of the merit list from the
     committee, the  selected candidates  as per  roster and
     the merit	list,  on  available  vacancies,  after	 due
     identification of	the credentials	 of  the  candidates
     concerned as per its legally permissible procedure.12.  In the  event of selection and appointment of erstwhile
     daily-rated employee or employees, who were inducted by
     Dr. Mallick, the entire proved period during which they
     had worked	 as daily  wager and/or	 confirmed employees
     will be  computed for  the purpose	 of  pensionary	 and
     other retrial benefits but they will not be entitled to
     claim any	inter se  higher seniority  in the selection
     made by the committee or for any promotion on the basis
     of their previous service.The appeals  are disposed of in the above terms. In the
facts and  circumstances of  the case there will be no order
as to costs.