{"id":196391,"date":"2007-09-17T00:00:00","date_gmt":"2007-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-and-ors-vs-manshu-kumbhkar-on-17-september-2007"},"modified":"2015-03-07T11:13:36","modified_gmt":"2015-03-07T05:43:36","slug":"state-of-jharkhand-and-ors-vs-manshu-kumbhkar-on-17-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-and-ors-vs-manshu-kumbhkar-on-17-september-2007","title":{"rendered":"State Of Jharkhand And Ors vs Manshu Kumbhkar on 17 September, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Jharkhand And Ors vs Manshu Kumbhkar on 17 September, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, D.K. Jain<\/div>\n
           CASE NO.:\nAppeal (civil)  4310 of 2007\n\nPETITIONER:\nState of Jharkhand and Ors\n\nRESPONDENT:\nManshu Kumbhkar\n\nDATE OF JUDGMENT: 17\/09\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & D.K. JAIN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
CIVIL APPEAL NO.    4310            OF 2007
\n(Arising out of S.L.P. (C) No. 18890 of 2005)<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tChallenge in this appeal is to the order passed by a
\nDivision Bench of the Jharkhand High Court dismissing the
\nLetters Patent Appeal filed by the appellant-State and its
\nfunctionaries.\n<\/p>\n
3.\tBackground facts in a nutshell are as follows:
\n\tOne Miss Suraj Mani Khalko, a few days before her
\nretirement made many appointments to the posts of Class III
\nand Class IV employees without following the procedure of
\nappointment stipulated by instruction dated 3.12.1980.  No
\nrecords were available in the office for such appointments,
\nnamely, advertisement, requisition to employment exchange,
\ncommittee for preparing panel to be chaired by District
\nMagistrate, with District Welfare Officer and three officers of
\ndifferent district levels. According to the respondent
\nadvertisement was issued for Class III and Class IV employees
\non 4.6.1993 and on 12.7.1993 interview letters were issued.
\nAccording to the appellants all these were signed by Miss
\nSuraj Mani Khalko and were fabricated and forged documents
\nand were never issued by the department which is manifest
\nfrom the dispatch register. On 16.9.1993 the appointment
\nletter was purportedly issued and the respondent claimed to
\nhave joined on 21.9.1993, but he was not paid his salary.  A
\nfew days thereafter i.e. on 15.10.1993 illegal appointments
\nmade by Miss Suraj Mani Khalko were cancelled by the
\nGovernment.  The respondent filed a writ petition in the year
\n1995 before the Jharkhand High Court. The High Court
\ndismissed the writ petition by its order dated 28.8.1995 with
\nthe direction to the respondent to file fresh representation with
\nall materials i.e. letter of appointment etc. before the authority.
\nDirection was also given to make payment of admitted dues
\nsince 21.9.1993 till date. The respondent did not file any
\nrepresentation as was directed by the High Court.  On the
\nbasis of the direction given by the High Court in CWJC
\nNo.3878\/1995, Deputy Commissioner was appointed to make
\nan inquiry.  By report dated 10.4.1997, the Deputy
\nCommissioner found all the appointments to be illegal. By
\norder dated 22.4.1997 the services of respondent, Sri Sanjay
\nKumar and three others were terminated by the District
\nEducation Officer. Respondent filed CWJC No.829\/1998.
\nSeveral terminated employees filed writ petitions which were
\ndismissed by the High Court on the ground that the
\nappointments were violative of Articles 14 and 16 of the
\nConstitution of India, 1950 (in short ‘the Constitution’) as they
\nhad been made without following the requisite procedure.
\nLearned Single Judge allowed the writ petition filed by the
\nrespondent on the ground that Sanjay Kumar had been
\nappointed pursuant to the order passed by the High Court.
\nThe Letters Patent Appeal filed as aforesaid was dismissed.\n<\/p>\n
4.\tLearned counsel for the appellants submitted that on the
\nbasis of the norms fixed for appointment, due procedure was
\nnot followed. Merely because somebody else had granted
\nappointment, that cannot be a ground to claim that wrong
\nshould be perpetuated.  On the basis of the norms fixed by the
\nDepartment of Personnel and Administrative Reforms dated
\n3.12.1980, specific modalities were required to be followed.  It
\nis to be noted that in Sanjay Kumar’s case LPA was dismissed
\non the ground of delay and, therefore, was not a precedent to
\nbe  followed.  Reference is made to the decision of this Court in
\nSecretary, State of Karnataka and Ors. v. Umadevi<\/a> (3) and
\nOrs. (2006 (4) SCC 1) to contend that the learned Single Judge
\ncould not have passed the order for regularization.\n<\/p>\n
5.\tIn response, learned counsel for the respondent stated
\nthat it is not a case of regularisation. There was an
\nadvertisement, there was a vacancy, panel of selection was
\nduly constituted and, therefore, no interference is called for.\n<\/p>\n
6.\tIn the instant case, the norms have been fixed not by any
\nRule but by administrative instructions.  As noted above,
\nstand of the appellant is that respondent was not sponsored
\nby the employment exchange.  There was no advertisement
\nand there was not even any properly constituted committee to
\nmake the selection.  The stand that letter of appointment was
\nissued clearly gets negatived when the entries from the
\ndispatch register are noted. According to the respondent
\ninterview letters were issued on 12.7.1993 and advertisement
\nwas issued on 4.6.1993.  There is no entry in the dispatch
\nregister for these two dates.  The details are annexed to P-9 to
\nthe rejoinder affidavit.\n<\/p>\n
7.\tIt is to be noted that by order dated 4.9.1996 in CWJC
\nNo.3878\/95 the High Court noted as follows:
\n“A revealing fact has been disclosed that
\ntaking advantage of the orders passed by this
\nCourt, as mentioned in Annexures-5 to 8, this
\nRespondent No.4 is squandering the
\ngovernment money and getting the back dated
\nappointment letter issued from regional
\nDeputy Director of Education, North
\nChotanagpur Division, Hazaribagh, now
\nretired without the knowledge of the District
\nEstablishment Committee, whose Chairman
\nis Deputy Commissioner.”\n<\/p>\n
8.\tReliance by the High Court on the order passed in
\nSanjay Kumar’s case (supra) was thoroughly misconceived.  It
\nis to be noted that LPA was dismissed on the ground of delay.
\nEven otherwise, merely because mistake had been committed
\nin one case, there is no rational for perpetuating that mistake,
\neven when the same is illegally impermissible.  It is to be
\nnoted that in terms of the executive instructions, the following
\nprocedure was to be adopted:\n<\/p>\n
“6.\tOn other category of class-4 posts the
\nappointments will be made through District
\nemployment exchange as far as practicable
\nfrom local areas.  Because only one panel for
\nthe appointment of class-4 employees will be
\nprepared for appointment at district level which
\nwill be effective for one year, the district officer
\nwill give extensive publicity to the
\nadvertisement calling for applications and
\nexamine the applications.  Every applicant will
\nquote his registration region\/the district
\nexchange.  If due to any reason the District
\nemployment officer does not recommend his
\nname then the Collector will admit his
\napplication on the ground of registration No.
\nand will consider the application and the
\nDistrict Magistrate will as per necessity,
\nexamine the list as recommended by the
\nEmployment Exchange for appointment.\n<\/p>\n
7.\tFor recruitment to such posts a
\ncommittee will be formed to be chaired by the
\nDistrict Magistrates and members of such a
\ncommittee will be district welfare officer,
\ndistrict employment officers and three senior
\nofficers of different district levels working
\ndepartment as nominated by the district
\nmagistrates and two officers from the
\ndepartment of district level developmental
\nworks.  For appointment to the class-4 posts
\nin every district a list of suitable candidates
\nwill be prepared finally by the said committee
\nat the outset of the financial year by the
\nmonth of May and appointments through year
\nby the financial year would be made in all
\noffices from this list.  So far as the current
\nfinancial year is concerned, if a list of suitable
\ncandidate has already been prepared in
\nkeeping with memo No.10747 dated 20th June
\nin any district, then the recruitment in the
\ncurrent year should be made from the list but
\nif there is no such list prepared in any district
\naccording to the above memo then such a list
\nshould be got prepared by aforesaid district
\nlevels committee by 31st December, 1980.
\nDistrict Magistrates are hereby requested that
\nthey should sent by 15th Feb., 1981 a detailed
\nstatement in the enclosed proforma about
\nappointments made in every district level
\nofficers uptill 31st January, 1981 keeping in
\nview the above procedure.  The report
\nregarding the appointment made from the list
\nprepared for next financial year in accordance
\nwith the above procedure should be sent to
\nthe department of personnel till 15th July,
\n1981.”\n<\/p>\n
9.\tIn Ashwani Kumar and Ors. v. State of Bihar and Ors.
\n(1997 (2) SCC 1), it was noted in paras 13 and 14 as follows:\n<\/p>\n
“13. So far as the question of confirmation of
\nthese employees whose entry itself was illegal
\nand void, is concerned, it is to be noted that
\nquestion of confirmation or regularisation of
\nan irregularly appointed candidate would
\narise if the candidate concerned is appointed
\nin an irregular manner or on ad hoc basis
\nagainst an available vacancy which is already
\nsanctioned. But if the initial entry itself is
\nunauthorised and is not against any
\nsanctioned vacancy, question of regularising
\nthe incumbent on such a non-existing
\nvacancy would never survive for consideration
\nand even if such purported regularisation or
\nconfirmation is given it would be an exercise
\nin futility. It would amount to decorating a
\nstill-born baby. Under these circumstances
\nthere was no occasion to regularise them or to
\ngive them valid confirmation. The so-called
\nexercise of confirming these employees,
\ntherefore, remained a nullity.\n<\/p>\n
xxx\t\t\txxx\t\t\txxx
\nAs we have seen earlier when the initial
\nappointments by Dr Mallick so far as these
\ndaily-wagers were concerned, were illegal
\nthere was no question of regularising such
\nemployees and no right accrued to them as
\nthey were not confirmed on available clear
\nvacancies under the Scheme. It passes one’s
\ncomprehension as to how against 2500
\nsanctioned vacancies confirmation could have
\nbeen given to 6000 employees. The whole
\nexercise remained in the realm of an
\nunauthorised adventure. Nothing could come
\nout of nothing.\n<\/p>\n
xxx\t\t\txxx\t\t\txxx
\nZero multiplied by zero remains zero.
\nConsequently no sustenance can be drawn by
\nthe appellants from these confirmation orders
\nissued to them by Dr Mallick on the basis of
\nthe directions issued by the authorities
\nconcerned at the relevant time. It would
\namount to regularisation of back-door entries
\nwhich were vitiated from the very inception.\n<\/p>\n
xxx\t\t\txxx\t\t\txxx
\nWhether they are posts or vacancies they
\nmust be backed up by budgetary provisions
\nso as to be included within the permissible
\ninfrastructure of the Scheme. Any posting
\nwhich is dehors the budgetary grant and on a
\nnon-existing vacancy would be outside the
\nsanctioned scheme and would remain totally
\nunauthorised. No right would accrue to the
\nincumbent of such an imaginary or shadow
\nvacancy.\n<\/p>\n
14. In this connection it is pertinent to note
\nthat question of regularisation in any service
\nincluding any government service may arise
\nin two contingencies. Firstly, if on any
\navailable clear vacancies which are of a long
\nduration appointments are made on ad hoc
\nbasis or daily-wage basis by a competent
\nauthority and are continued from time to time
\nand if it is found that the incumbents
\nconcerned have continued to be employed for
\na long period of time with or without any
\nartificial breaks, and their services are
\notherwise required by the institution which
\nemploys them, a time may come in the service
\ncareer of such employees who are continued
\non ad hoc basis for a given substantial length
\nof time to regularise them so that the
\nemployees concerned can give their best by
\nbeing assured security of tenure. But this
\nwould require one precondition that the initial
\nentry of such an employee must be made
\nagainst an available sanctioned vacancy by
\nfollowing the rules and regulations governing
\nsuch entry. The second type of a situation in
\nwhich the question of regularisation may arise
\nwould be when the initial entry of the
\nemployee against an available vacancy is
\nfound to have suffered from some flaw in the
\nprocedural exercise though the person
\nappointing is competent to effect such initial
\nrecruitment and has otherwise followed due
\nprocedure for such recruitment. A need may
\nthen arise in the light of the exigency of
\nadministrative requirement for waiving such
\nirregularity in the initial appointment by a
\ncompetent authority and the irregular initial
\nappointment may be regularised and security
\nof tenure may be made available to the
\nincumbent concerned. But even in such a
\ncase the initial entry must not be found to be
\ntotally illegal or in blatant disregard of all the
\nestablished rules and regulations governing
\nsuch recruitment. In any case back-door
\nentries for filling up such vacancies have got
\nto be strictly avoided. However, there would
\nnever arise any occasion for regularising the
\nappointment of an employee whose initial
\nentry itself is tainted and is in total breach of
\nthe requisite procedure of recruitment and
\nespecially when there is no vacancy on which
\nsuch an initial entry of the candidate could
\never be effected. Such an entry of an employee
\nwould remain tainted from the very beginning
\nand no question of regularising such an illegal
\nentrant would ever survive for consideration,
\nhowever competent the recruiting agency may
\nbe. The appellants fall in this latter class of
\ncases. They had no case for regularisation
\nand whatever purported regularisation was
\neffected in their favour remained an exercise
\nin futility. The learned counsel for the
\nappellants, therefore, could not justifiably fall
\nback upon the orders of regularisation passed
\nin their favour by Dr Mallick. Even otherwise
\nfor a regularising such employees well-
\nestablished procedure had to be followed.\n<\/p>\n
xxx\t\t\txxx\t\t\txxx<\/p>\n
Even this letter clearly indicates that the
\nposts had to be filled up by following the
\nprescribed procedure. Despite all these
\ncommunications neither the initial
\nappointments nor the confirmations were
\ndone by following the prescribed procedure.
\nOn the contrary all efforts were made to
\nbypass the recruitment procedure known to
\nlaw which resulted in clear violation of
\nArticles 14 and 16(1) of the Constitution of
\nIndia both at the initial stage as well as at the
\nstage of confirmation of these illegal entrants.
\nThe so-called regularisations and
\nconfirmations could not be relied on as
\nshields to cover up initial illegal and void
\nactions or to perpetuate the corrupt methods
\nby which these 6000 initial entrants were
\ndrafted in the Scheme by Dr Mallick. For all
\nthese reasons, therefore, it is not possible to
\nagree with the contention of the learned
\ncounsel for the appellants that in any case
\nthe confirmations given to these employees
\ngave them sufficient cloak of protection
\nagainst future termination from services. On
\nthe contrary all the cobwebs created by Dr
\nMallick by bringing in this army of 6000
\nemployees under the Scheme had got to be
\ncleared lock, stock and barrel so that public
\nconfidence in Government administration
\nwould not get shattered and arbitrary actions
\nwould not get sanctified.”\n<\/p>\n
10.\tThis decision was noted in para 31 of Uma Devi’s case
\n(supra).\n<\/p>\n
11.\tAbove being the position, the order of the learned Single
\nJudge, as maintained by the Division Bench cannot be
\nsustained.\n<\/p>\n
12.\tThe appeal is allowed without any order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Jharkhand And Ors vs Manshu Kumbhkar on 17 September, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, D.K. Jain CASE NO.: Appeal (civil) 4310 of 2007 PETITIONER: State of Jharkhand and Ors RESPONDENT: Manshu Kumbhkar DATE OF JUDGMENT: 17\/09\/2007 BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-196391","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Jharkhand And Ors vs Manshu Kumbhkar on 17 September, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-jharkhand-and-ors-vs-manshu-kumbhkar-on-17-september-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Jharkhand And Ors vs Manshu Kumbhkar on 17 September, 2007 - 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