ASHWANI KUMAR AND ORS. ETC. versus STATE OF BIHAR AND ORS.

Citation: [1996] SUPP. 10 S.C.R. 120 · Decided: 16-12-1996 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Dismissed

Judgment (excerpt)

A 
ASHWANI KUMAR AND ORS. ETC. 
·• 
v. 
STATE OF BIHAR AND ORS. 
DECEMBER 16, 1996 
B 
[AM. AHMADI, CJ., S.B. MAJMUDAR AND 
SUJATA V. MANOHAR, JJ.] 
Service Law-Recrnitment-Planned Expenditure-Budgetary sanction 
c 
is a sine qua non-Appointments dehors budgetary sanction and on non-ex-
isting vacancy-Held, unauthorised and illegaf-Tuberculosis Eradication 
Scheme-Appointment of 6000 em]Myees against sanctioned posts of 
225D-Breach of procedure of recrnitment-All appointments held un-
authorised and illegal-Claim of regularisatiort-Held, unsustainable. 
D 
Tennination of Services-Natural Justice-Principles of-Compliance 
with. 
Eradication of Tuberculosis was taken up as a part of 20 Point 
Programme in planned ~enditure; The then D.eputy Director, Health 
E 
Department of the Government of Bihar, in-charge of Tuberculosis for a 
number of years, was made the Deputy Director of the Scheme and the 
Chairman of Selection Committee constituted by the Government, to 
recruit 2250 Class III and Class IV employees on posts created to imple-
ment the Scheme. About 6000 persons were appointed by the Chairman 
without any written orders. He directed many of them to be adjusted by 
F transfer by District Medical Officers and shuffled their payment of 
salaries by turns. Regularisation of many of such persons including most 
of the appellants was made. When petitions under Article 226 of the 
Constitution seeking payment of salaries were made, an Enquiry Commit-
tee was constituted to find out whether the appointments made were valid 
G 
and whether salaries could be paid . to such employees. The Vigilance 
Department appointed to enquire into the matter reported that the Chair-
man had violated the rules of recruitment. Pursuant to the direction of the 
/'" 
~ . 
High Court, a Screening Committee was constituted which found that the 
initial appointments made were in violation of the instructions issued by 
the Government and that the Chairman, appointing authority circum-
H vented the rules by making a,djustment by transfer without verifying the 
120 
l' 
ASHWANIKR. v. STAIB 
121 
qualifications, eligibility or disclosing previous places whereat the can- . A 
didates appointed had worked etc. etc. Relying on the report, all the 
appointments were cancelled. When their legality was questioned in the 
Writ Petitions, the High Court upheld the Government action. Hence these 
appeals by special leave. 
This group of appeals was heard by the Division Bench of this Court. 
There arose a difference of opinion between the two Judges. K. Ramas-
wamy, J. confirming the order of the High Court held that even though it 
was open to the Government to create posts or to fill up the posts 
independently ofexistence of any law or statutory rules, the said exercise 
B 
had to be consistent with the rights guaranteed under Articles 14 and 16(1) C 
of the Constitution of India; that when planned expenditure is i:equired to 
be spent, budgetary sanction is mandatory and in the present case when 
some of the employees were sent for one month's training, posts were 
created and budgetory sanction was obtained thereby abusing the absolute 
power, the Chairman afpointed 6000 persons at his whim and wagery; that D 
procedure for appointment to Class III and Class IV posts was given a go 
by and instead casual appointments were made without any letter of 
appointment to fill up even non-existing vacancies; that existence of post 
or vacancy was a sine qua non for making appointments to such existing 
posts or vacancies available, the recruitment made to these posts was 
patently illegal and without authority of law; that when initial appoint-
E 
ments were in violation or in negation of the rules or when there were no 
orders for appointment, to confer permanency of appointment to sucll 
posts by regularisation in violation of the executive instructions or rules 
was itself subversive of the procedure and, therefore it was futile to issue 
writs as prayed for. 
F 
Hansaria, J. quashed the termination orders qua the appellants, 
holding that for the purpose of recruiting Class III and Class IV employees 
in the 20 Point Programme the procedure prescribed by the Office 
Memorandum dated 3.2.1980 was.not required to be followed and that even 
though the Chairman was not justified in giving· direct appointment to G 
about 6000 persons when there were oniy 2500 sanctioned posts, all° the 
persons so employed had not abetted, aided or instigated the Chairm

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