JUDGMENT
Shiva Kirti Singh, J.
1. All these 16 matters have been heard together because they involve common questions of law and facts. Except the matter in LPA No. 644 of 2006 all other matters have been admitted for hearing pursuant to an order of remand passed by the Hon’ble Supreme Court in Civil Appeal No. 5845 of 2004 and other analogous appeals. By that order the judgments passed by a Division Bench of this Court dismissing the Letters Patent Appeals of the employees was set aside only on the ground that one of the learned Judges who decided the appeals had also heard and decided some of the writ petitions of some of the appellants. The Hon’ble Supreme Court, therefore, remanded the matters to this Court for hearing and disposal by a Bench of Judges who had not dealt with the concerned writ petitions sitting singly. Thereafter, those matters were admitted for hearing by an order dated 7.11.2006 in view of ratio laid down by the Apex Court in the case of Delhi Transport Corporation v. DTC Mazdoor Congress and Ors. and in the case of Basudeo Tiwary v. Sido Kanhu University and Ors. .
2. The impugned orders and the admitted facts in these matters disclose that writ petitioners the employees were appointed to the regular post of Constable in police service under the State of Bihar on so called special grounds like showing bravery in helping the police etc. without following the mode of appointment prescribed in the police manual and without any advertisement inviting applications from the general public eligible for post of Constable or even from those who may be having similar special claims of so called bravery and heroism. The ground for termination of services of the petitioners/employees is common to the effect that their appointments were made in total disregard of prescribed procedure for appointment to such post and in teeth of constitutional mandate of equality in matters of public appointment. In most of the matters relevant facts were obtained from the employees through show cause notice and in few of the matters only such as in LPA No. 426/2003 relating to 7 employees, some of the appellants in LPA No. 425 of 2003, 2 of the appellants out of 6 in LPANo.401/2003, LPA No. 418/2003, LPA No. 427/2003, LPA No. 431/2003, LPA No. 419 of 2003 and some of the appellants in LPA No. 1189/2003, a stand has been taken that the concerned employees were not issued with any show cause notice before termination of their services.
3. On behalf, of the appellants an attempt was made to show that the Director General of Police was competent in enacting a special procedure of appointment on the special ground of bravery etc. or acute hardship and such appointments should be treated on similar footing as appointments of dependants of employees dying in harness on compassionate ground which is being made in various State services under the scheme of compassionate appointment formulated by the State Government. On this ground it was submitted that the appointment of the concerned employees should not be treated as appointments made in violation of the rules of appointment in the Police Manual or in violation of the constitutional mandate of equality. The second submission on behalf of the appellants/employees is that the show cause notices were issued on the dictate of the State Government and other higher officials and not in the discretion of the competent authority, the Superintendent of Police, who has terminated the services of the employees concerned. It has further been submitted that there has been no proper application of mind to the show cause filed on behalf of the employees and the orders of termination do not meet with the requirements of a reasoned order which is necessary because the termination orders affect the appellants / employees adversely. Lastly, it has been submitted that in cases of some of the employees the counter affidavits did not contain any reply to the claim that no show cause notices were issued before orders of termination and hence, at least in their cases the termination orders must be quashed on the ground of being in violation of principles of natural justice.
4. On behalf of the appellant, Hemkant Jha of LPA No. 625 of 2003 a further submission was made that before his termination in the year 2002 he had completed 18 years and 10 months of service whereas other employees had completed at best, 6 years and few months or lesser period of service and, therefore, his termination should be quashed on ground of equity and hardship. On his behalf it has been highlighted that uncontroverted statements in paragraph 5 of the writ petition show that petitioner was appointed long back in 1984 on the special ground that his brother, a constable was grievously injured in 1984 in an accidental firing by a DIG of Police in an inebriated state when he was on duty in evening hours in a camp organized at Rajgir for holding a shooting competition. It was also shown that this petitioner/ appellant was confirmed after three years and earned several awards/ appreciations and now he is not in the age group where he can apply for any job under the State. It was submitted that because of injury to the brother of the petitioner the family was entitled to compensation or damages which was substituted by the highest authority of the Police department, the DGP, with job of constable to this appellant, Hemkant Jha. Therefore, depriving him of that service would amount to a fraud which should be prevented by quashing the impugned order or else he should be suitably compensated by the State which may realize the amount of compensation from the concerned officials of the Police department responsible for wrong/illegal recruitment of this appellant, if so advised.
5. On behalf of the State it was submitted that during the tenure of ex-Director General of Police, Mr. S.K. Saxena large number of backdoor appointments to the post of Constable were made and most of the appellants were appointed during that period without any advertisement and as has been recorded in the impugned judgment of the learned Single Judge in LPA No. 419 of 2003 when such appointments came to the knowledge of the Government, an enquiry was held which disclosed such backdoor appointments. Thereafter, at the higher level a decision was taken to give individual notice to such persons and if it was found that they have not been appointed through the procedure as laid down in the Police Manual then their services should be terminated. A similar exercise was ordered to be made even in case of appointments to the post of Constable made earlier to the tenure of Mr. Saxena. It was shown from that judgment that in case of Nehru Sharma (CWJC No. 14685 of 2001 and another analogous case) decided on 12.11.2001 termination of similarly appointed employees was not interfered with and the writ petitions were dismissed. Further, in the case of Sudhir Kumar v. the State of Bihar and Ors. reported in 2001 (3) PLJR 717 also such appointments were held to be illegal and in the LP As filed against that judgment bearing No. 1496 and 1514 of 2001, the Division Bench not only upheld the judgments of the learned Single Judge but further referred to an earlier direction to the State Government to look into similar other backdoor illegal appointments made in the Police Department in violation of rules governing appointment of Constables. It was submitted on behalf of the State that the exercise of locating such illegal appointments was conducted pursuant to such judicial direction and as a consequence, the impugned orders of termination were passed in the case of present appellants also. It has been submitted that in the case of Sudhir Kumar which has been approved by a Division Bench of this Court, it has been held that in the light of relevant rules in the Police Manual i.e. Rule 661 (b) read with Police Order No. 202/1988 and Section 12 of the Police Act, 1861, the appointment to the post of Constable is to be made by the District Superintendent of Police for which a select list is to be prepared by a Selection Board duly constituted for the purpose and the Director General of Police has no discretionary power to order or make appointment to the post of Constable on any ground.
6. On going through the impugned judgments, the relevant facts and the judgment in the case of Sudhir Kumar, it is found that on facts there is no meaningful and serious challenge to the relevant facts that concerned employees in these matters have been appointed on the post of Constable without any advertisement and without following procedure of appointment. No general decision or order or regulation of the State Government is available to support the contention that appointment of the appellants is akin to compassionate appointment for which the State Government has taken a policy decision and prescribed rules. In fact, there is no controversy or issue in these mattes because on admitted facts it is clear that the appointment of the appellants on the post of Constable were made through a backdoor method in complete disregard of procedure for appointment laid down in relevant rules in the Police Manual and in violation of constitutional mandate of equality in public employment. The State has rightly relied upon various judgments including that of a Constitution Bench of the Apex court in the case of Secretary, State of Karnataka v. Uma Devi reported in (2006) 4 SCC 1, to submit that such appointments do not confer any right on the appointees and in such cases of appointments made without following due process as per mandate of the Constitution or the relevant rules for appointment, the Court cannot direct for grant of benefits like absorption, regularization or reengagement. Those principles, though considered in that case in the context of absorption/ regularization, will apply with equal force where such illegal appointment has been terminated and the Court is called upon to consider such order and the connected issue of ordering for reinstatement i.e. for continuation of such illegal appointments. That Constitution Bench judgment has emphasized the relevant aspects in paragraphs 33 and 39 and in paragraph 54 it has been clarified that those decisions which run counter to the principles settled in that decision, or in which directions run counter to that decision, will stand denuded of their status as precedents. The same principle of law flows from a Division Bench judgment of this Court in the case of Amrendra Singh v. State of Bihar 1999 (3) PUR 984.
7. Having found that the appellants/employees concerned are backdoor appointees as held by the learned Judges in the impugned orders and they have no right to their posts, we are now required to consider the submissions advanced on behalf of the appellants that the impugned orders should be set aside because the termination orders were issued by the various Superintendents of Police not of their own free will but rather under the directions of the higher authorities including the State Government and that principles of natural justice were not complied with in relation to some of the petitioners/appellants.
8. The submissions noticed above must be decided in the background of facts of each case. In the present case the facts noticed in brief disclose that large scale backdoor appointments were detected to have been made during the tenure of a particular Director General of Police. An enquiry was held and thereafter as a result of such enquiry directions were issued by the higher authorities to the Superintendents of Police, the competent authority to make appointments to the post of Constable, to issue show cause notices wherever such backdoor appointments are detected and to take action for their termination. The issue is whether the State Government and the successor Director General of Police could have held such enquiry and issued such directions or not. In order to ensure rule of law and obedience to constitutional mandate governing public employment, the State and its officials must be held duty bound to take such steps and there is no legal infirmity in such action.
9. Coming to the issue of natural justice, there is no averment that in respect of issuance of advertisement and adherence to the rules of Police Manual governing appointment to the post of Constable there is any difference in the case of one or the other appellants. In fact, no such submission was advanced even at the stage of arguments. The only difference on facts, as noticed earlier was pointed out in the case of appellant, Hemkant Jha that he has completed a much longer period of service of 18 years and 10 months as compared to other appellants. Thus, in substance, the pleadings in respect of main issue relating to procedure of appointment do not leave any scope of deciding any issue as the relevant facts on the face of the record clearly show that admittedly appellants/the concerned employees were appointed dehors the appointment rules and in violation of constitutional mandate of equality in public employments. In these cases there is no decision of the State Government to show relaxation of rules and laying down of any policy to support such backdoor appointments. Hence, it is found that the writ petitions in exercise of wholesome power under Article 226 of the Constitution of India could not have been allowed on the ground of purported violation of natural justice when on their own pleadings the writ petitioners could not show any right to hold the post to which they claim to have been appointed. For issuance of a writ of mandamus, a petitioner besides showing a statutory or public duty upon the concerned authority to act otherwise, must also prove co-existence of a corresponding right in himself in order to claim enforcement of the said duty.
10. The two main judgments referred to at the time of admission have already been noticed earlier. On going through the judgment in the case of Delhi Transport Corporation v. DTC Mazdoor Congress (supra) it is found that in the said case one of the regulations providing for removal of a permanent employee from service without assigning any reasons was under question and such challenge succeeded on account of Article 14 and other constitutional provisions. That case was not in respect of backdoor appointments, applicability of principles of natural justice and exercise of writ jurisdiction in the case of such appointments. In the case of Basudeo Tiwary v. Sido Kanhu University (supra) it has been held that service of an employee under the University cannot be terminated on the ground that the appointment is contrary to provisions of the Act, Statutes, Rules or Regulations etc. unless an enquiry is held and a finding to that effect is recorded. It has been further held that to arrive at such a finding in an enquiry, the person whose appointment is under enquiry will have to be issued with a notice; any conclusion in such enquiry without notice to the affected employee would not be just, fair or reasonable.
11. Even in a recent judgment in the case of Inderprit Singh Kahloan v. State of Punjab , the Apex Court has held that if in the matter of appointment Articles 14 and 16 are violated, the appointment is void but before treating it so, the appointing authority has to consider foundational facts and establish them. This observation was made in the backdrop of issues relating to legality of En masse cancellation of selection of Civil Services Officers of Executive and Judicial branches on ground of large scale fraud in selection procedure at behest of Chairman of the State Public Service Commission without notice to candidates. In that judgment some earlier decisions of the Supreme Court dispensing with requirement of natural justice where on facts the Court was satisfied that unfair means were adopted on a large scale in any particular examination have been noticed. In such a situation, as observed in that judgment the materials must satisfy the court that the concerned authority has considered foundational facts and they have been established. Such consideration is to ensure fairness and serve the same purpose which is ensured through principles of natural justice.
12. On behalf of the State reliance was place upon a Full Bench decision of this Court in the case of Rita Mishra v. Director, Primary Education, Bihar 1988 (3) SLR 130 in which it was held that cancellation of an appointment which rested on fraudulent letter or was otherwise illegal so as to make the appointment non est in the eyes of law required only a declaration by the State that the appointment is non est and thereby the service could be terminated, principles of natural justice were not required to be observed by giving opportunity of hearing.
13. In view of law laid down by the Apex Court in the case of Basudeo Tiwary (supra) there is no scope to hold that in an enquiry against an individual employee regarding his appointment being illegal, notice is not necessary. In individual cases such notice must be given to ensure that the enquiry is just, fair and reasonable. However, it has been held in large number of cases that natural justice is not an unruly horse which can be deployed anywhere and everywhere even to defeat the ends of justice. The purpose of observing principles of natural justice is to ensure fairness and justice. It will depend on the facts of a given case and if on facts the court comes to a conclusion that lack of notice has caused injustice or that there is fair and reasonable chance of injustice and prejudice, the relevant issue may be remitted back to the concerned authority for fresh decision after affording opportunity of hearing to the affected party. But in a case of present nature where it has been found that the backdoor procedure adopted was common to large number of employees including the appellants and the concerned authority has considered foundational facts and they have been established unquestionably not only in the proceeding but also before the court in a writ proceeding under Article 226 of the Constitution of India, it would be unfair and unjust to segregate the cases of some of the employees on the ground of alleged lack of notice and to direct for reconsideration of only their cases by the authorities when on facts this Court has already found that their appointments were admittedly made in similar fashion as those of others whose appointments have been terminated on valid grounds after giving notice. Such exercise would be futile and would involve only a wastage of public time and saddle the concerned employees with further harassment and expenses. It will be contrary to well established principle that for interference in exercise of writ jurisdiction the petitioner in given circumstances must show that he had a right to hold the post. It will also tend to perpetuate injustice. Discussions in paragraph 49 of the judgment in the case of Amrendra Singh v. State of Bihar (supra) are also quite useful in this regard.
14. In view of aforesaid discussions and findings it must be held that the appellants have failed to succeed in their challenge to orders of termination and have failed to show any right in themselves to hold the post of Constables. The wholesome writ jurisdiction under Article 226, in the facts of the case, could not have been exercised in a different manner and there is no plausible ground to interfere with the orders under appeal or even to pass an order of remand of cases of some of the employees only for fresh consideration on the ground of lack of notice when cases of all the appellants admittedly stand on same footing; their services have been terminated on common grounds, the matter relates to large scale backdoor appointments and there is no personal and individual allegation against the employees. Judgments by single Judges on this issue are conflicting but the contrary view is not worth approval.
15. So far appellant Hemkant Jha is concerned, in view of aforesaid discussions and in the light of the fact that his appointment was similar in procedure as that of others, although made more than 18 years from the date of impugned termination order, it is not possible to grant him the relief prayed for and order for his reinstatement. However, it is well settled that in appropriate cases, the Court can mould the relief in exercise of jurisdiction under Article 226 of the Constitution of India to serve the interest of justice. In the peculiar facts of the case of Hemkant Jha noticed earlier in paragraph 4 of this judgment, particularly due to termination of an extremely long service of more than 18 years given to him by way of compensation for injury caused to his brother, a policeman on duty, by a superior police officer due to accidental firing, we are inclined to order the State of Bihar to pay him Rs. 5,00,000/- (Five lakhs) as compensation for the wrong way of compensating the family in 1984 through illegal appointment of this appellant. This amount must be paid to him within three months otherwise it will carry an interest @ 10 per cent per annum, compounded every year till payment. The State of Bihar, if so advised, may initiate steps against those responsible for illegal appointment of this appellant for realizing the aforesaid amount. The appeal of Hemkant Jha is disposed of accordingly.
16. In the result, this Court finds no good ground to interfere with the impugned judgments and orders of learned single Judges. The appeals are found to be without any merit. They are dismissed accordingly but with limited relief to appellant Hemkant Jha. There shall be no order as to costs.
17. Before parting with this matter I feel compelled to observe that if the State Government feels that recruitment to the post of Constable in Police Force on special grounds such as bravery or extreme hardship due to injury to a brother while on duty in Police Force, is likely to enhance the efficiency or morale of Policemen, it may consider to frame rules for recruitment on such special grounds keeping in view the requirements of Articles 14 and 16 of the Constitution of India which permit only reasonable classification on permissible grounds and mandate same treatment to all persons belonging to the same class.
Sheema Ali Khan, J.
18. I agree.