NAGENDRA CHANDRA ETC. ETC. v. STATE OF JHARKHAND & ORS

Citation: [2007] 12 S.C.R. 608

Court: Supreme Court of India

Bench: B.N. AGRAWAL, TARUN CHATTERJEE, V.S. SIRPURKAR

Case summary

NAGENDRA CHANDRA ETC. ETC. v. STATE OF JHARKHAND & ORS.pdf

Judgment text

NAGENDRA CHANDRA ETC. ETC. v. STATE OF JHARKHAND & ORS. NOVEMBER 28, 2007 [B. N. AGRAWAL, TARUN CHATTERJEE AND V. S. SIRPURKAR, JJ. ] Service Law: Bihar Police Manual: r. 663(d)-Termination ofservices ofPolice Constables-On the ground that vacancies were neither advertised in newspaper nor through Employment Exchange, but displayedon notice Board in office of Zonal Inspector General of Police-HELD: Appointments made were not only in infraction ofr. 663(d) but also violative ofArticles 14 and 16 ofthe Constitution-The competent authority was quite justified in terminating the services of the appointees-However, their cases may be considered for future appointment relaxing age bar-Constitution ofIndia, Articles 14 and 16.

A large number of Police Constables were dismissed from service on the ground that the vacancies were neither advertised in the newspaper nor through the Employment Exchange, as envisaged by Rule 6(;3(d) ofthe Bihar Police Manual, but were displayed on the notice board in the office ofZonal Inspector General. The Division Bench of the High Court ultimately upheld the decision of the competent authority with the modification that dismissal from service should be treated as orders oftermination. In the instant appeal filed by the Constables, the question that arose for determination was: Whether the appointments of the appellants being in infraction ofRule 663(d) ofBihar Police Manual were irregular or illegal. Dismissing the appeal, the Court HELD: 1. 1.

From a bare perusal ofRule 663(d) ofBiharPolice Manual itwould beclear that the requirementofthe Ruleis to notify the vacancies in newspapers and to advertise the same through employmentexchange,which, undisputedly, has notbeen done in the present case as here the vacancies were notified through notice displayed on the notice board. [Para 6) [612-F, G] 1. 2. Ifan appointment is made in infraction ofthe requirement rules, the same would be violative of Articles 14 and 16 of the Constitution and, being nullity, would be liable to be cancelled. In the instant case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction of Rule 663(d) ofthe BiharPolice Manual but also violative ofArticles 14and16 ofthe Constitution, which rendered the appointments of the appellants as illegal; as such the competent authority was quite justified in terminating their services and the High Court was quite justified in upholding the same.

[Para 9) [614-C, D, EJ Secretary, State ofKarnataka & Ors. v. Umadevi (3) & Ors. , [2006] 4 SCC 1; Ashwani Kumar & Ors. v. State ofBihar & Ors. , [1996] 7 SCC 577; Ashwani Kumar & Ors. v. State ofBihar & Ors. , [1997] 2 SCC 1 and National Fertilizers Ltd. & Ors. v. Somvir Singh, [2006] 5 sec 493, relied on. 1. 3. However, in view of the fact that the appellants have continued in service for a period offourteen years, their cases may be considered for future appointment and age bar, ifany, may be relaxed in relation to them. [Para 10] [614-E, F] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5460- 5465 of 2007. From the Judgment and Order dated 30. 3. 2005 ofthe High Court ofJharkhand at Ranchi in W. P. Nos. 2469, 2470, 2471, 3911, 4831 and 5697 of 2004. Paramjit Singh Patwalia, Rudreshwar Singh, Tapesh Singh, Kumar Ranjan, Kaushik Poddar, Gopal Kumar Jha and Sanjay Jain for the Appellants. P. S.

Mishra, Ratan Kumar Chaudhuri, Dhruv Kumar Jha, Ravi Chandra Prakash, Upendra Mishra and Manu Shanker Mishra for the Respondents. The Judgment ofthe Court was delivered by B. N. AGRAWAL, J. 1. Leave granted. 2. The appellants along with several others were appointed as constables in the year 1990 pursuant to vacancies notified through notice displayed on the notice board in the Office ofZonal Inspector General, Ranchi. Subsequently, when it transpired that the vacancies were neither advertised through the employment exchange nor in the newspapers, the Director General - cum - Inspector General of Police directed that all such persons, including the appellants, be dismissed from service and consequentially they were dismissed.

Some ofthe constables filed writ petitions challenging the orders oftheir dismissal which were quashed by learned Single Judge ofthe High Court on the ground that the orders were passed without giving opportunity ofhearing against which the State ofJharkhand filed letters patent appeals in the High Court. In the meantime, the appellants also challenged their orders ofdismissal by filing separate writ petitions and their writ petitions and the letters patent appeals were heard together by aDivision Bench and by the impugned order High Court allowed the letters patent appeals, set aside orders ofthe learned Single Judge and dismissed the writ petitions filed on behalfofthe appellants with this modification only that orders ofdismissal from service should be treated as orders oftermination. Hence these appeals by special leave. 3.

Learned counsel appearing on behalfofthe appellants submitted that though the vacancies were neither advertised through the employment exchange nor in any newspaper, as required under Rule 663(d) ofthe Bihar Police Manual, but as the same were displayed on the notice board, it cannot be said that there was infraction ofthe said Rule; as such the services ofthe appellants should not have been terminated, more so when they have continued in service for a period offourteen years. On the other hand, learned counsel appearing on behalf of the State of Jharkhand submitted that as the appointments, being in infraction ofRule 663(d), were illegal, the competent authority was quite justified in terminating I i [B. N. AGRAWAL,J. ] services ofthe appellants. 4. In the case of Secretary. State of Karnataka & Ors. , v. Umadevi (3) & Ors.

, [2006] 4 SCC 1, a Constitution Bench ofthis Court laid down that any appointment made in violation ofrecruitment rules would be violative ofArticles 14 and 16 ofthe Constitution ofIndia [hereinafter referred to as 'the Constitution'] rendering the same nullity, as such even ifthe appointee has continued in service for a long period, he cannot be further allowed to continue in service but if, however, it was found that the appointment was not illegal but irregular, in that eventuality he could be pennitted to continue in service and the same could be regularized in case he had worked for ten years or more on duly sanctioned post. 5. Thus, the question that falls for our consideration is as to whether the appointments ofthe appellants being in infraction ofRule 663(d) of . the Bihar Police Manual were irregular or illegal. 6. Rule 663 ofthe Bihar Police Manual runs thus:- "Selection ofrecruits.

- (a) Strong, healthy, young men between the ages of 19 and 27 years and who have passed secondary (i. e. , Matriculation) examination shall be selected as recruits, as far as possible. The standard ofphysical tests shall be same as given in Appendix 38, clause 9 for Sub-Inspectors. For scheduled castes and tribes, the upper age-limit is up to 32 years and educational qualification can be reduced to middle pass ifmatriculates are not available. The standards of height and chest measurements are given below. These are the minima and Superintendents should endeavour to get men ofhigher standard:- (i) for general - height 163 centimetres and chest 80 centimetres. - ,; (ii) for scheduled caste and tribe - height 158 centimetres and ... chest 78 centimetres. Note. -In measuring the chest, the measuring tape must be applied evenly but not tightly, its upper edge touching the lower border ofthe shoulder blades, and its lower edge passing just above the nipples, the arms hanging by the sides.

The standard is the )- minimum measurement, with the chest fully deflated. Just before the measurement is taken the candidate shall be made to count up to thirty, without taking breath and without hurrying. (lii) There is no physical standard for Gurkhas, who are residents ofIndia and men ofthe best physique obtainable and at least literate shall be enlisted. N. B. - Nepalese subjects cannot be enlisted. (b) Recruits shall be measured by the reserve inspector in the Superintendent's presence at the time ofenlistment. (c) The Selection Board is not precluded from selecting men over 27 years ofage or, for special reasons, men beneath the standard ofmeasurement, but it shall do so only on good grounds. Before enlistment the Deputy Inspector-General can give relaxation in height and chest by 2. 5 ems. only. [See Cl. 9 ofAppendix 2, Part 2).

(d) The recruitment shall be made twice a year in such a way that recruits are ready to go to Constables Training School before the start ofthe session. There shall be no necessity for training in district headquarters. The Superintendent shall publish notice ofselection ofcandidates in newspapers giving the exact number ofvacancies and also advertise through employment exchange. He shall endeavour that selection is completed and results are laid before the candidates the same day or on the following day so that they are not made to stay unnecessarily. No waiting list ofcandidates beyond the number advertised except for few extramen for possible unfitness in medical test is to be kept. " From bare perusal of the aforesaid Rule it would be clear that the requirement ofthe Rule is to notify the vacancies in newspapers and to ..

advertise the same through employment exchange, which, undisputedly, has not been done in the present case as here the vacancies have been notified through notice displayed on the notice board. 7. In the case ofAshwani Kumar & Ors. v. State ofBihar & Ors. , [1996) 7 SCC 577, large number of appointments were made by Dr. [B. N. AGRAWAL,J. ] Mallick, Deputy Director, Health Department, Government ofBihar, by notifying the vacancies on the notice board. When the illegality was brought to the notice ofthe Government, the appointments were cancelled which necessitated filing of writ petitions before the High Court which were dismissed and when the matter was brought to this Court, the cases were placed before a 2-Judge Bench consisting ofK. Ramaswamy and B. L. Hansaria, JJ. There was difference ofopinion between the two learned Judges. K. Ramaswamy, J.

(as His Lordship then was), held that the vacancies having been put up on the notice board, there was flagrant breach ofArticles 14 and 16 ofthe Constitution. Learned Judge observed in paragraph 26 at page 594 thus:- "Admittedly, except putting up the vacancies on the notice board ofthe Tuberculosis Centre at Patna, no advertisement inviting applications from the open market was made nor were the names called from the employment exchange...... The procedure adopted by Mallick in either appointing or directing to appoint persons who had applied for appointment pursuant to the notification ofvacancies put up on the notice board was stage-managed by him and is in flagrant breach ofArticles 14 and 16(1) ofthe Constitution. " Hansaria,J. , dissented from the aforesaid view expressed by Ramaswamy,J. , and, therefore, the matter was placed before a 3-Judge Bench - Ashwani Kumar & Ors. v. State ofBihar & Ors.

, [1997] 2 SCC 1 - in which order ofthe High Court was upheld and directions were given, inter alia, for making appointments by publishing notice in all the newspapers having circulation in the State of Bihar inviting applications for filling up the vacancies. 8. In the case ofNational Fertilizers Ltd & Ors. v. Somvir Singh, [2006] 5 SCC 493, this Court was dealing with the case ofrecruitment under Rule 1. 5 ofRecruitment and Promotion Rules which required "direct recruitment by advertisement". The appointments were made without advertisement by a public sector undertaking which is State within the meaning ofArticle 12 ofthe Constitution. Those appointed filed writ petition before the High Court for regularization oftheir services which was allowed and their services were regularized. Challenging the said order, when the matter was brought to this Court, the orders ofregularization ,.

were quashed on the ground that the initial appointments were nullities in view ofthe fact that the same were in infraction ofthe Rules and violative of Articles 14 and 16 of the Constitution. The Court observed in paragraph 13 at page 497 thus:- ".... Admittedly, no advertisement was issued in a newspaper nor was the employment exchange notified as regards existence of vacancies. It is now trite law that "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation ofsuch Rules would render them as nullities.... " 9. In view of the foregoing discussion, we have no option but to hold that ifan appointment is made in infraction ofthe recruitment rules, the same would be violative ofArticles 14 and 16 ofthe Constitution and being nullity would be liable to be cancelled.

In the present case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction ofRule 663(d) ofthe Bihar Police Manual but also violative ofArticles 14 and 16 ofthe Constitution, which rendered the appointments ofthe appellants as illegal; as such the competent authority was quite justified in terminating their services and the High Court, by the impugned order, was quite justified in upholding the same. 10. In the result, the appeals fail and the same are accordingly dismissed, but in view ofthe fact that the appellants have continued in service for a period of fourteen years, we may, however, observe that their cases may be considered for future appointment and age bar, ifany, may be relaxed in relation to them. There shall be no order as to costs. RP. Appeal dismissed.