JUDGMENT
R.K. Patra, J.
1. All the aforesaid writ petitions divided into two sets. The first set consists of O. J. C. No. 10973 of 1997. 11093 to 11096 of 1997, 11240 of 1997, 11561 of 1997, 11562 of 1997, 15966 of 1997, 15967 of 1997, 15968 of 1997, 16132 of 1997, 3185 of 1999. 5413 of 1999 and 5944 of 1999. The second set consists of O. J. C. Nos. 17607 of 1998. 3460 of 1999, 4136 of 1999, 4455 of 1999, 5945 of 1999 and 4189 of 2000.
In the first set of cases, the petitioners have prayed for quashing of order dated 3. 7. 1997 of the Chairman, Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O. A. Nos. 2250 (C) of 1993, 2747 (C) of 1994. 3 (C) of 1995 and 746 (C) of 1998 and order dated 9.3.1999 of Bhubaneswar Bench of the Tribunal in O. A. No. 464 (C) of 1998 and O. A. No. 3247 (C) of 1997. One of the grounds of challenge is that under the Administrative Tribunals Act, 1985, a single member of the Administrative Tribunal has no jurisdiction to decide the vires of a statute and declare the Orissa Medical Education Service (Appointment of Junior Teachers Validation) Act, T993, as ultra vires the Constitution.
In the second set of cases, the petitioners have prayed for quashing of the common order dated 30.11.1998 passed by the Division Bench of the Orissa Administrative Tribunal (for short, ‘the Tribunal”) in O. A. Nos. 1570 (C) of 1994, 915 (C) of 1997, 4041 (C) of 1996 and 3132 (C) of 1997 and order dated 3.2.1999, of the Cuttack Bench of the Tribunal in O, A. Nos. 1812 (C) of 1999, 273 (C)/97, 274 (C) of 1998. 275 (C) of 1998, .276 (C) 1998, -578 (C) of 1998 and 1956 (C) of 1998 declaring Section 3 of the Orissa Medical Education Service (Appointment of Junior Teachers Validation) Act, 1993, i.e. Orissa Act, 11 of 1993 (hereinafter referred to as “the Validation Act’) ultra vires the Constitution. The Tribunal as a consequence has quashed the seniority assigned to those applicants who filed the aforesaid original application before it.
2. All the aforesaid matters being analogous were heard together with the consent of counsel for parties and are disposed of by this common order.
3. There is no necessity to examine the point that a single member of the Tribunal has no jurisdiction to decide the vires of a statue as it has become academic inasmuch as the Division Bench of the Tribunal by the impugned order challenged in the second set of writ petitions has declared the Validating Act unconstitutional and inoperative.
4. There is no dispute with regard to the basic facts leading to the filing of these writ petitions except that the petitioners and their contesting opposite parties belong to different disciplines/ specialities and the petitioners are amongst those 49 ad hoc appointees whose appointments as Junior teachers have been validated under the Validating Act.
5. BACKGROUND FACTS :
The echelon of teaching posts in the government medical colleges of the State from the bottom is as follows : (I) Junior Teachers; (2) Assistant Professor; (3) Associate Professor; and (4) Professor. The dispute with which we are concerned relates to the appointment of Junior Teachers and consequent fixation of the seniority.
A set of Rules under the proviso to Article 309 of the Constitution were made on 30.5.1970 to regulate the appointments by promotion to senior teaching posts from the junior teaching posts of the medical colleges of the State. On 3.3.1970 these rules were superseded by the Orissa Medical Health Service (Promotion to Senior Teaching posts in the medical colleges Rules, 1970. On 24.9.1973 another set of Rules called. The Orissa Medical and Health Services (Recruitment and Promotion to Teaching Posts in the Medical Colleges) Rules, 1973′ (hereinafter referred to as “1973 Rules’) were framed under the proviso to Article 309 of the Constitution in supersession of 1970 Rules. Sub-rule (1). and Sub-rule (3) of Rule 4 of the 1973 Rules provided that appointment to the posts of junior teachers shall be made through a Selection Board by recruitment from amongst the Assistant Surgeons with at least one year’s experience as such in consultation with the O.P.S.C. and in making recommendations the Selection Board shall give due regard to the candidate’s academic career, record of service, his aptitude and ability to teach. Rule 3(f) defined ‘Selection Board’ to mean a Selection Board appointed by the State Government to select persons for appointment to the junior or senior teaching posts and shall consist of the Principals of the Medical Colleges in the State and such others as may be nominated by the Government. Then came the repeal of 1973 Rules which were substituted by another set of Rules made under the proviso to Article 309 of the Constitution called ‘The Orissa Medical Education Service (Recruitment) Rules, 1979 which came into force on being published in Orissa Gazette dated 16.8.1979 (hereinafter referred to as ‘1979 Rules’). Under these Rules (vide Sub-rule (2) of Rule 4) minimum qualification of Post Graduate degree in the speciality was presciibed for appointment of junior teachers Rule 3 (f) provided that the Selection Board was to be constituted with Member of the Orissa Public Service Commission (hereinafter referred to as ‘Commission’) as its Chairman. The Secretary to Government in the Health and Family Welfare Department. D. H. E. T. and Principals of the Medical Colleges were to be its members. It also provided that the quorum for the meeting of the selection would be three members, one of whom shall be the Chairman. This indicates that there was no scope for a meeting of the Selection Board without the Chairman who was to be a Member of the Commission. After coming into force of the 1979 Rules, the State Government requested the Commission on 3.9.1979 to nominate one of its Members to be the Chairman of the Selection Board. The Chairman in his D. O. No. 4490/PSC dated 4.9.1979 intimated the State Government that he would be the Chairman of the Selection Board. The State Government did not constitute the Selection Board under the 1979 Rules.
On 20.9.1979 (by this time the 1979 Rules had already come into force) the Director of Medical Education and Training (hereinafter referred to as ‘D.M.E.T.,’) issued advertisement inviting applications from eligible candidates for appointment as Junior Teachers in various disciplines/specialities. The last date for receipt of application was 10.10.1979 Pursuant to the advertisement, many Assistant Surgeons filed their applications. All the applications received were kept pending. As many posts of Junior Teachers remained vacant for long time, the Chief Minister passed orders on 27.1.1980 to fill up those posts by ad hoc appointments. Without constituting a Selection Board under the 1979 Rules, the Selection Board appointed on 3.8.1979 under the 1973 Rules was allowed to continue which held its meeting on 1.7.1980 and selected candidates. The Selection Board comprised of the following members :
(1) Secretary, Health and Family Welfare Department.
(2) Additional Secretary, Health and Family Welfare Department.
(3) Deputy Secretary, Health and Family Welfare Department.
(4) Director, Medical Education and Training, Orissa.
(5) Principal, M. K. C. G. Medical College, Berhampur.
(6) Principal, V. S. S. Medical College, Burla.
(See the note of submission submitted by Shri R. K. Mohapatra, learned counsel for the petitioners).
It may be seen from the composition of the Selection Board that it was without the Member of the Commission as its Chairman. Two officers of Health and Family Welfare Department, namely, Additional Secretary and Deputy Secretary who could not have been in the Board as members as per the 1979 Rules when the Secretary of the Department was in attendance participated in the Selection. As member of the Commission was not its Chairman and two other officers of the Health and Family Welfare Department who could not have been taken as members as the Secretary himself was in attendance participated in the deliberation, the so-called Selection Board cannot be held to be a Selection Board in terms of Rule. 3 (f) of 1979 Rules.
Service career as reflected in the C. C. Rs. of candidates for making subjective assessment was not taken into consideration by the Selection Board on the ground that it would take lot of time. After obtaining orders of the Chief Minister on 4.8.1980, orders were issued by the State Government to the selected candidates appointing them as Junior teachers on ad hocbasis consequent posting orders were issued by the D.M.E.T.. There are also another selection in respect of some disciplines/specialities on 11.11.1980. In all, 49 candidates (which include the petitioners) thus came to be selected by the Selection Board and appointed as Junior teachers on ad hoc basis by the Government.
On 4.10.1992 Rule. 4 (which deals with appointment to junior teaching posts) of the 1979 Rules was amended by which selection through the Selection Board was done way with and it was prescribed that selection shall be made through the Commission. On 25.1.1983 the Commission published advertisement inviting applications from amongst the Assistants Surgeons for different Junior teaching posts in different disciplines/specialities. In the advertisement maximum age limit was fixed to 32 years. The D. M. E. T. took exception to the advertisement of the Commission and wrote to the Government on the ground that a large number of junior teachers were continuing on ad hoc basis and their terms of appointments were extended from time to time. The D. M. E. T. wanted to know whether such candidates should apply to the Commission. The State Government in its letter dated 4.2.1983 requested the D.M.E.T. to instruct all those who have been given ad hoc appointments as junior teachers after the amendment on 4.10.1982 to apply in response to the advertisement. In the meantime, the State Government had made reference to the Commission for concurrence to the ad hoc appointment of the aforesaid 49 junior teachers. The Commissioner wanted to know inter alia as to why its member was not associated with the selection. Correspondences continued between the State Government and the Commission for more than six years till 1988 and ultimately the Commission in its letter dated 10.11.1989 refused its concurrence to the irregular appointments on the basis of selection on 4.7.1980 and 11.11.1980. This led to enactment of the Validating Act by which all those 49 junior teachers appointed ad hoc basis by the Government were declared to be deemed to have been validly and regularly appointed in the service from the date of their appointment as such. The contesting private opposite parties accordingly filed applications Under Section 15 read with Section 19 of the Administrative Tribunals Act, 1985 before the Tribunal which by the impugned order dated 30.11.1998 declared the Validating Act ultra vires and inoperative. The aforesaid decision, as indicated earlier, was delivered by the Division Bench of the Tribunal. It concurred with another order dated 3.7.1997 pronounced by its Chairman sitting singly in O. A. No. 2250 (C) of 1993, O. A. No. 2427 (C) of 1994 and two other connected Original Applications.
The following are the main grounds on the basis of which the Tribunal has declared to Validating Act to the unconstitutional:
(i) The law validating appointments based on arbitrary selection by a Selection Board not properly constituted violates Article 14 of the Constitution;
(ii) Service particulars including particulars relating to their academic qualifications, teaching experiences, research and field experience of all eligible candidates were not forwarded to the Commission and the Selection Board having been not constituted as envisaged under the 1979 Rules, absence of consultation with the Commission being a lacunae which has not been removed, such appointments could not have been regularised on the date of ad hoc appointment, there being no reasonable nexus between the date of ad hoc appointment and the date of declaration under the Validating Act;
(iii) Action of the Executive being in violation of the provisions of 1979 Rules, it contravened Articles 14 and 16 of the Constitution and such unconstitutional acts cannot be validated merely by enacting a Validating Act;
(iv) The ad hoc appointees to whom the Commission refused to give concurrence are made senior under the Validating Act to all those who have been appointed on the recommendation of the Commission. There is another such validating legislation i.e. Orissa Act 10 of 1993 Orissa Medical Service (Appointment of Assistant Surgeons Validation) Act, 1993] under which 159 Assistant Surgeons appointed in the State Medical and Health Services on ad hoc basis during the year 1983-88 without recommendation of the Commission were declared to have been regularly and validly appointed in the service with effect from the date of commencement of the Act and they shall be en block junior to the Assistant Surgeons recruited in accordance with the Recruitment Rules. There is no rational basis for tasking two contradictory stands in the two enactments during the same year for the same department.
6. Let us now proceed to consider the core question, i.e..
VALIDITY OF THE VALIDATING ACT :
Indubitably under our Constitution, Parliament and State Legislatures have plenary powers of legislation on the subjects within their field. They can legislate on the said subjects prospectively as well as retrospecitvely. Validating Acts are enacted retrospectively to render judgment of a competent Court or order of an authority ineffective. Such Acts are also enacted to validate the past transactions.
The validity of the Validating Act is to be tested on the following grounds :
(i) Whether the legislature enacting the Validating Act has competence over the subject-matter;
(ii) Whether by the validation, the legislature has removed the cause of invalidity or changed the basis in the previous laws or past transactions; and.
(iii) Whether the validating law is consistent with the provisions of Part-Ill or any other provision of the Constitution
Keeping the aforesaid undisputed legal position in view, let us examine if the Validating Act satisfies all the tests. Section 3 of the Validating Act reads as follows :
“Section 3 (1). Notwithstanding anything contained in the Recruitment Rules, forty-nine Junior Teachers appointed on ad hoc basis by the Government of Orissa from out of the regularly recruited Asst. Surgeons and posted in Medical Colleges of the Sate during the years 19890 and 1981 and are continuing as such on the date of commencement of this Act, shall, for all intents and purposes, be deemed to have been validly and regularly appointed in the service from the date of their appointment as such and no such appointment shall be challenged in any Court of Law merely on the ground that such appointments were made otherwise than in accordance with the procedure laid down in the Recruitment Rules.
(2) The inter se seniority of the Junior Teachers whose appointments are so validated under Sub-section (1) shall be determined on the basis of their respective date of appointment as such.”
As has been held by the Supreme Court in Utkal Contractors and Joinery Private Limited v. State of Orissa, AIR 1987 SC 1454, a statute is best understood if one knows the reason for it. The reason for a statute is the safest guide to its interpretation. The words of statute take their colour from the reason for it. There are external and internal aids to discover the reason for a statute. The external aids are Statement of Objects and Reasons when the Bill is presented to the Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Committees. Let us now proceed to discover the reasons for the statute by taking external aid i.e. by referring to the Statement of Objects and Reasons of the relevant Bill. The objects and reasons behind the enactment of the Validating Act are as follows :
“There were large number of vacancies in the Junior Teaching Posts (Lecturer) in three Medical Colleges of the State and as it was very difficult to manage the affairs of Medical Colleges, and, therefore, the Government were compelled to fill up those teaching posts from out of regularly recruited Assistant Surgeons having required qualification as per the Recruitment Rules through a Board and in 1980 and 1981, numbering 49.
To the Selection Board the Orissa Public Service Commission was invited, but none of their representatives attended the Board. When the names were referred to Orissa Public Service Commission after a long lapse of years they turned down the panel. In the mean time two of them, appointed as Assistant Professor, have been concurred in by the Orissa Public Service Commission, Many of them have been given other rank promotion also.
It is apprehended that if the services of Junior Teachers (Lecturers) are terminated, they would face extreme financial hardship besides aggravating the State’s vacancy position. It would also create serious legal complications. Keeping the above points in view, this special legislation is brought in to validate their appointments as there is no scope to regularise the services of above category of Junior Teachers (Lecturers) within the frame work of the relevant Recruitment Rules:
This Bill intends to achieve the above objective.”
On careful reading of the Statement of Objects and Reasons and Sub-section (1) of Section 3 of the Validating Act we have no hesitation to hold that the 49 number of junior teachers are irregular appointees (appointed on ad hoc basis) their appointments being not in accordance with the procedure laid down by the 1979 Rules. The expression “within the frame work of the relevant Recruitment Rules” appearing in the last sentence of Statement of Objects and Reasons and the words “otherwise than in accordance with the procedure laid down in the Recruitment Rules” occurring in the last sentence of Section 3 (1) of the Validating Act lend support to the aforesaid finding reached by us.
7. Before taking further probe into the validity of the Validating Act, we may consider whether a rule can be made under Article 309 of the Constitution regularising irregular temporary appointments within the frame of the service Rules. This question came up for consideration before the Supreme Court in A. N. Nanjundappa v. T. Thimmaiah. AIR 1972 SC 1767. The impeached rules were published on 9.1.1967 which provided that notwithstanding any rule made under the proviso to Article 309 of the Constitution or any other rule or order in force at any time. Dr. T. Thimmaiah shall be deemed to have been regularly appointed as Principal, School of Mines, Orgaum with effect from 15.2.1958. In support of the rules, it was contended that appointment to a civil post could be made by direct recruitment or by promotion or by regularisation of an appointment which had been initially made irregularly. After considering the relevant rules of the Mysore Civil Services Rules/Regulations, their Lordships held that recruitment to the post of Principal could be made by competitive examination or by selection or by promotion. Thimmaiah’s appointment however was not made by any of’the aforesaid methods nor even by way of transfer. The State Government’s contention that rule under Article 309 for regularisation of appointment of a person would be a form of recruitment was held to be unsound and unacceptable. In paragraph 23 of the judgment, the Court observed as follows:
“…….Art. 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules………”
In paragraph 26 of the judgment the Supreme Court further observed as follows :
“………Regulation cannot be said to be a form of appointment…..If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot to said to be a mode of recruitment. To accede to such a proposition would be to introduce a now head of appointment in defiance of rules or it may have the effect of setting at naught the rules……………..”
The ratio of A. N Nanjundappa was also followed by the Supreme Court in Ramendra Singh v. Jagadish Prasad, AIR 1984 SC 885; K.Narayanan v. State of Kamataka, AIR 1994 SC 55 and V. Sreenivasa Reddy v. Govt. of Andhra Pradesh, AIR 1995 SC 586.
It may be noted that in the 1979 Rules only one mode of appointment of junior teachers has been prescribed. Regularisation cannot be said to be the mode of appointment. If the appointment itself is in violation of 1979 Rules, illegal appointment cannot be regularised. Therefore, in the face of 1979 Rules, no rule could have been made under Article 309 of the Constitution by stating that notwithstanding anything contained in the Rules, services of forty-nine junior teachers irregularly appointed on ad hoc basis are hereby regularised. It may be noted that it is not the case of the State that any such rule under Article 309 of the Constitution has been made regularising their services.
8. Now coming to the Validating Act, the contention of the private opposite parties is that without amending or removing the lacuna in the 1979 Rules, the Validating Act cannot by mere declaration validate or regularise the ad hoc appointment of forty- nine junior teachers who were irregularly recruited. The counsel for the petitioners on the other hand contended that Rules, 3, 4 and 15 of the 1979 Rules were amended with effect from 4.10.1992 and, as such, their was nothing to amend further. In order to appreciate the rival contentions, certain facts are necessary to be recapitulated at the cost of repetition. Rule 3 (f) of the 1979 Rules defined Selection Board to mean the Selection Board appointed by the State Government to select persons for appointment to the junior or senior teaching posts and shall consist of member of the Commission to be nominated by the Chairman who shall be the Chairman and the Secretary to Government, Health and Family Welfare Department and the Principals of the Medical Colleges in the State as members. In absence of the Secretary to Government, Additional Secretary or Joint Secretary of the Health and Family Welfare Department may be nominated to act in his place. The D. M. E. T. may in the event of his inability to attend, nominates an Additional Director or an officer above the rank of the Joint Director to represent him in the Board. Three members including the Chairman shall form quorum for meeting of the Selection Board. Admittedly, no Selection Board was constituted under the 1979 Rules. On the contrary, the Selection Board which was constituted on 3.8.1979 under the 1973 Rules was allowed to continue as the Selection Board. It held its meeting on 4.7.1980. It is also admitted fact that the Selection Board was not chaired by the member of the Commission or its Chairman himself. The Selection Board comprising (i) Secretary. Health and Family Welfare Department, (ii) Additional Secretary. Health and Family Welfare Department, (iii) Deputy Secretary, Health and Family Welfare Department, (iv) Director, Medical Education and Training, Orissa, (v) Principal, M. K. C. G. Medical College, Berhampur and (vi) Principal, V. S. S. Medical College. Burla and two intruders, i.e. Additional Secretary and Deputy Secretary who could not have been in the Board as members as per the 1979 Rules when the Secretary was in attendance who participated in the selection, As member of the Commission was not its Chairman and two other Officers of the Health and Family Welfare Department who could not have been taken as members, as the Secretary himself was in attendance, the Selection Board was not constituted in terms of Rules 3 (f) of 1979 Rules. Therefore, the selection made by such improperly constituted Selection Board cannot be held to be valid selection. Further more, as required under Rule 4 (3) of the 1979 Rules the Selection Board did not give due weight to candidates’ academic attainments, experience etc. (see paragraph 8 of the impugned orders). Besides this, under the 1979 Rules there were two stages of consideration for selection. The first stage was by the Selection Board under Rule 4 and the second stage was by the Commission under Rule 15 which provided inter alia that the list of eligible candidates shall be forwarded to the Commission along with the recommendation of the Selection Board and service particulars and other details relating to their academic qualification, teaching experience, research and field experience. Admittedly, the procedure laid down in Rule 15 was not followed. Nothing is brought to our notice to show that the defect in the constitution of the Selection Board and the vice of non-consultation with the Commission were removed by any valid method. As a matter of fact, the Validating Act proceeded on the basis that the forty-nine ad hoc junior teachers continued to be irregular appointees. Therefore, the legislature by mere declaration without anything more cannot regularise their appointments by enacting the Validating Act. It is thus’ not a valid piece of legislation.
The problem does not stop here because the Validating Act while validating the appointment of those forty-nine junior teachers has further declared by Sub-section (2) of Section 3 thereof that inter se seniority of the junior teachers whose appointments are so validated under Sub-section (1) shall be determined on the basis of their respective date or appointment as such. It has been authoritatively laid down by the Constitution Bench of the Supreme Court in Direct Recruit Class-II Engineering Officers Association v. State of Maharashtra, AIR 1990 SC 1607 that if the initial appointment is not made according to the rule, subsequent regularisation of a service does not entitle an employee to the benefit of intervening service for seniority (See also Masood Akhtar Khan v. State of Madhya Pradesh. (1990) 4 S.C.C. 24 and Dr. M. A. Haque v. Union of India, (1993) 2 S. C. C. 213). In Keshav Chandra Joshi v. Union of India, AIR 1991 S. C. 284, the Supreme Court held that seniority is to be counted from the date on which appointment is made to the post in accordance with the rules, ad hoc appointment having been made not according to the rules, period of officiation In such post cannot be considered for computing seniority. In State of West Bengal v. Aghore Nath Deay, (1993) 3 S.C.C. 371, it was held by the Supreme Court that the benefit of ad hoc service is not admissible if the appointment was in violation of the rules.
9. It may be noticed that those 49 junior teachers who are irregularly appointed on ad hoc basis are conferred artificial seniority by Sub-section (2) of Section 3 of the Validating Act over the contesting opposite parties who have been authorised as junior teachers on regular basis in accordance with the rules. This has resulted in artificially making unequals as equals. It has been observed by the Supreme Court in K. Narayanan v. State of Karnataka, AIR 1994 S.C. 55 as follows :
“Rules operate prospectively. Retrospectivity is exception. Even where the Statutes permit framing of rule with retrospective effect, the exercise of power must not operate discriminately or inviolation of any constitutional right so as to affect vested right………..”
There is no rational relation between the object sought to be achieved by the Validating Act and the dates of appointment of 49 junior teachers or between the date of enforcement of the Validating Act and the dates of ad hoc appointments of those 49 junior teachers. Conferment of artificial seniority to the irregular appointees over the junior teachers who have been appointed on regular basis in accordance with the Rules is arbitrary and violative of Article 14 of the Constitution.
10. For the aforesaid reasons, we are of the view that the Tribunal has rightly declared the Validating Act ultra vires the Constitution. There is no merit in these writ petitions which are accordingly dismissed. No coasts.
Interim orders, if any, stand dissolved.
P.K. Patra, J.
I agree.