CASE NO.:

Appeal (civil)  1270 of 2008

 

PETITIONER:

State of Jharkhand & Ors.

 

RESPONDENT:

Bijay Kumar & Ors.

 

DATE OF JUDGMENT: 14/02/2008

 

BENCH:

S.B. Sinha & V.S. Sirpurkar

 

JUDGMENT:

J U D G M E N T

(Arising out of SLP (C) No.16466 of 2006)

 

 

S.B. Sinha, J.

 

 

            Leave granted.

1.         Respondents herein were appointed on ad hoc basis in Frozen Semen

Bank Project as Technical Assistants in the Department of Animal

Husbandry of the Government of Bihar.  The said appointments were made

by the Regional Director, Animal Husbandry, Ranchi. 

 

2.         In the year 1996, a scam known as Fodder Scam came to light and

all unauthorized appointments were declared illegal by the State, inter alia,

on the premise :

1.      The Regional Director, Animal Husbandry,

Ranchi was not competent to make any such

appointment.

2.         No advertisement was issued before making

such appointment.

3.         No reservation policy was followed.

4.         The number of persons appointed, were

much more than the sanctioned post and

5.         Besides these many other rules and norms of

appointment were also flouted.

 

 

            Pursuant thereto or in furtherance thereof, the services of the

respondents were terminated in 1997.  Services of some other employees

were also terminated on 23.10.1998.  They filed writ petitions before the

then Ranchi Bench of the Patna High Court, which were dismissed.

            Letters Patent Appeals preferred thereagainst were also dismissed

observing that in the event their cases are considered for appointment,

relaxation in respect of age and weightage in the future appointment should

be given.

 

3.         One Umakant Sinha and others approached this Court.  By a judgment

and order dated 23.7.2003, this Court while opining that ad hoc appointees

have no right to claim regularization in the service, directed :

In this view of the matter, we direct the State of

Jharkhand to consider at the earliest for recruiting

Technical Assistant for the Semen Bank Project

and ti fill up the existing vacancies within a period

of three months from today.  For that purpose the

Respondent-State is directed to constitute a

Selection Committee as per the existing Rules

within a period of three months from today.

(ii)        The appellants whose services are

terminated may apply to the Secretary of the

Animal Husbandry Department within a period of

one month for being re-appointed or for

regularization of their services.  The Committee

shall consider the eligibility, suitability, past record

as well as the educational qualifications of the

appellants as per the rules as on today.

(iii)       The Committee shall give relaxation of age

and weightage over outsiders as directed by the

High Court.  However, if the appellants are found

unsuitable for some reasons, it would be open to

the Committee to reject their applications.

            Appropriate authority shall issue orders for

appointment after considering the roster and the

merit list, on available vacancies.

            The appeals stand disposed of accordingly. 

There shall be no order as to costs.  We, however,

make it clear that this case shall not be treated as

precedent as we have decided it purely on the facts

and in the peculiar circumstances of this case.

(Emphasis supplied)

 

4.         An interlocutory application was filed for extension of time to comply

with the said order and by an order dated 2.12.2003, three months time was

granted for constitution of the Committee.  It was clarified that directions by

this Court were in relation to the appellants in the said appeals.

            Another writ petition, however, was filed in the High Court of

Jharkhand which came into being in November 2000 by Bijay Kumar and

others.  The said writ petition was also dismissed by an order dated 6.2.2004. 

Special Leave Petitions were also filed thereagainst and by a judgment and

order dated 10.4.2006, a Bench of this Court directed :

We are of the view that the issue should be

resolved finally and should not be kept pending. 

The earlier order of this Court was passed on

23.7.2003.  The right to be selected thereunder

cannot continue indefinitely.  Therefore, we direct

: (1) that the Respondent-Authority shall advertise

in the local newspapers having wide circulation of

the holding of selections for the purpose of filling

of those vacancies which according to the Rules,

are to be filled by direct appointment.  (2)

Applications should be asked for from these ad hoc

employees who were appointed in the Frozen

Semen Bank Project between 1988 to 1992 and

whose services were terminated in 1998.  No such

employee who has already been considered by the

Selection Committee under the order dated

23.7.2003 shall apply.  (3) No appointment already

made either in the normal course or pursuant to the

earlier order of this Court shall be disturbed.

(4)The advertisement shall specify the last date

with which the candidate concerned shall apply for

consideration including thereon proof that the

candidate had served with the Respondents.  (5)

The selection shall be made by the Selection

Committee only against the available vacancies. 

Preference shall be given to those who have longer

tenure of service over those who have shorter

tenure of service, other things being equal.  (6) All

other conditions in the order dated 23.7.2003 shall

be operative as far as the procedure to be followed

by the Selection Committee to be set up pursuant

to this order is concerned.  (7)  This shall be a one

time exercise.  No further application shall be

entertained by such ad hoc employees.  This fact

should also be mentioned in the advertisement.

(Emphasis supplied)

 

5.         An advertisement by the appellant was issued.  Questioning the

legality of the said advertisement, a writ petition was filed before the

Jharkhand High Court which was marked as Writ Petition (S) No.156 of

2005.  A direction was issued therein that the process of selection should be

completed within four months. 

     Respondents, however, filed another writ petition before the High

Court which by reason of the impugned judgment dated 30.6.2006 was

disposed of, directing :

In view of the judgment rendered by the Division

Bench on 23rd June, 2006 in W.P.(S) No.156 of

2005 (Chandra Kant and ors. vs. State of

Jharkhand and ors.) Supreme Court decision dated

10th April, 2006 and earlier decision dated 23rd

July, 2003 passed in Civil Appeal no.5342-5343 of

2003 and analogous cases, this application is

disposed of with liberty to the petitioners to apply

(those who have not applied in pursuance of the

advertisement to the post of Technical Assistant),

if any advertisement is issued in future.

 

 

6.         Mr. B.B. Singh, learned counsel appearing on behalf of the appellant,

would submit that the aforementioned direction of the High Court, if

implemented, would run contrary to and inconsistent with the directions

contained in this Courts orders dated 23.7.2003, 2.122003 and 10.4.2006.  It

was urged that this Court, in the aforementioned orders, having directed not

to treat the same as precedent as also one time exercise, the directions issued

by the High Court are clearly violative thereof.

7.         Mr. P.P. Rao, learned senior counsel appearing on behalf of the

respondents, on the other hand, urged that one time exercise directed to be

carried out by this Court had not been fully complied with and, thus, the

High Court was entitled to pass the impugned order.  It was submitted that

this Court, in any event, in exercise of its jurisdiction under Article 142 of

the Constitution of India, can issue necessary directions so as to extend the

benefits also to those who had not approached this Court earlier.  Strong

reliance in this behalf has been placed on Amrit Lal Berry v. Collector of

Central Excise, New Delh & Ors. [(1975) 3 SCR 960] and B.N. Nagarajan &

Ors. v. State of Mysore & Ors. [(1966) 3 SCR 682].  It was contended that

advertisement having been issued in July 2006 and the impugned order

having been passed by the High Court in June 2006 and furthermore in view

of the fact that the respondents have appeared in the examination, this Court

should not exercise its discretionary jurisdiction under Article 136 of the

Constitution of India. 

8.         Respondents herein were appointed in 1992.  They were removed

from service in 1997.  They did not question the said orders of termination. 

We have noticed hereinbefore that Abhay Kumar, Uma Kant Sinha and

others had questioned the orders of their termination from service before the

Patna High Court.

9.         This Court in its order dated 23.7.2003, although opined that they had

no right to continue in service, issued some directions evidently in exercise

of its power under Article 142 of the Constitution of India.

     The said order was to be kept confined only to the appellants thereof,

was reiterated by this Court in its order dated 2.12.2003.

            It may be true that while Abhay Kumar and others approached this

Court aggrieved by and dissatisfied with the judgment and order dated

16.2.2004 of the learned Single Judge of the High Court, this Court, in its

order dated 10.4.2006 intended to resolve the issue finally.  It was in that

situation opined that the right to be selected cannot continue indefinitely. 

This Court dealt with the grievances of those employees whose services

have been terminated in the year 1998.

10.       The core question, therefore, which arises for our consideration is as

to whether the High Court had any jurisdiction to issue a similar direction

relying on or on the basis of the orders of this Court which had been passed

in terms of Article 142 of the Constitution and confined only to the

appellants of those cases. 

     Indisputably, Respondents were not parties to the said orders.  No

benefit thereof, thus, could be extended in their favour.  The High Court,

therefore, in our opinion, could not have issued the aforementioned

directions. 

11.       Constitution of India conferred a special jurisdiction in  this Court

only.  Although power of judicial review has been conferred on the High

Courts, it had not been given any special jurisdiction as has been done on the

Supreme Court in terms of Article 142 of the Constitution of India.  It is,

therefore, very difficult to comprehend that the High Court could issue the

impugned direction which, in effect and substance, would be violative

thereof.

            Reliance placed by Mr. Rao on Amrit Lal Berry (supra) is not

apposite.  When a law is declared by this Court, it becomes the law of land

in terms of Article 141 of the Constitution of India.  Indisputably, therefore,

such law would enure to the benefit of the persons similarly situated but it is

incomprehensible that when this Court grants some special benefits to the

parties who are before it and confined the relief only to them, such a benefit

can be extended by the High Court relying on or on the basis thereof.  The

matter might have been different if this Court had not issued such directions,

namely, the said order should be kept confined to the parties before it. 

When this Court declared that no further application should be entertained at

the instance of other ad hoc employees in the name of parity or otherwise,

the High Court could not have issued a direction which would run counter to

the spirit of the said order. 

12.       Submission of Mr. Rao that notwithstanding the orders dated

23.7.2003 and 10.4.2006, the High Court have committed no mistake in

issuing the impugned directions, is stated to be rejected.  This Court

intended to pass a final order.  The said order should have been allowed to

attain finality.  If a third order can be issued, others who are waiting on the

fence may be held to be entitled to file a fourth application.  The process,

thus, would go on unendingly.  Relaxation given for a limited purpose would

become a rule and not the exception. 

            In Kendriya Vidyalaya Sangathan & Ors. v. Sajal Kumar Roy & Ors.

[(2006) 8 SCC 671], dealing with the question of age relaxation, it was held:

The appointing authorities are required to apply

their mind while exercising their discretionary

jurisdiction to relax the age-limits.  Discretion of

the authorities is required to be exercised only for

deserving candidates and upon recommendations

of the Appointing Committee/Selection

Committee.  The requirements to comply with the

rules, it is trite, were required to be complied with

fairly and reasonably.  They were bound by the

rules.  The discretionary jurisdiction could be

exercised for relaxation of age provided for in the

rules and within the four corners thereof.  As the

respondents do not come within the purview of the

exception contained in Article 45 of the Education

Code, in our opinion, the Tribunal and

consequently, the High Court committed a

manifest error in issuing the aforementioned

directions.

 

13.       There is a sea change in the situation in the field of public

employment. Ten years have passed.  A new State has come into being. 

Thousands of persons have acquired similar or higher qualifications.  They

have got their names registered in the employment exchanges.  The job

opportunities in a specialized field being limited, those who are now entitled

to be considered, may not be considered at all, if the order of the High Court

is allowed to operate. 

14.       Constitutional guarantee of equality as envisaged under Articles 14

and 16 of the Constitution of India must be protected.  While passing one

order or the other, we should not forget the interest of those who are not

before us.  Citizens have human right of development and offer of

appointment on such posts should be directed to be made only on merit. 

Only because some persons had approached this Court and obtained an

order, the same should not be extended to others to which they are not

otherwise entitled to, namely, weightage in service over the new applicants.

15.       For the reasons aforementioned, the impugned judgment cannot be

sustained.  It is set aside accordingly.  The appeal is allowed with no order as

to costs.