LexMD. ASHIF AND ORS. versus STATE OF BIHAR AND ORS.
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'-' (2010) 6 S.C.R. 191 MD. ASHIF AND ORS. v. STATE OF BIHAR AND ORS. (Civil Appeal Nos. 4256-4257 of 2010) MAY 6, 2010 [J.M. PANCHAL AND T.S. THAKUR, JJ.] A B Service Law - Termination - On ground of illegal initial appointment - Voluntary Health Workers, working on monthly honorarium in State run dispensaries - Appointed by way of C regularization/absorption as Primary Health Workers - They worked thus for 15 years, whereafter they were terminated on the ground that their initial appointments were manifestly illegal - J4stification of - Held: Justified - The appointment process itself was completely violative of the constitutional D scheme underlying public employment - No procedure was followed while granting such appointments - The Chief Medical Officer, who made the appointments, was not vested with the power to do so, nor were the claims of other candidates eligible for the appojp_tments considered - Court cannot allow E such an illegality to continue irrespective of the length of time for which it has continued - Constitution of India, 1950 - Articles 14 and 16. Appellants were working in State run dispensaries as Voluntary Health Workers (VHWs) on a monthly honorarium of Rs.501-. After some time, they were appointed by way of regularization/absorption as Primary Health Workers on a regular pay scale and they worked thusJor 151years. later, their services were terminated on F the ground that their initial appointments were manifestly G illegal. The appellants challenged tneir termination before the High Court. A Single Judge of the High Court set 191 H 192 SUPREME COURT REPORTS [2010] 6 S.C.R. A aside the termination, on the ground that the same was based on an alleged irregularity committed 15 years earlier. However, the Division Bench, in Letters Patent Appeal filed by the respondent-State, set aside the order passed by the Single Judge holding that since the initial s appointment of the appellants was illegal, the very fact that the appellants had worked for a long period did not cure that defect so as to justify their re-instatement in service. Hence the present appeals. c Dismissing the appeals, the Court HELD:1.1. The legal position regarding the right of an employee to seek regularisation of his services stands settled by a long line of the decisions of this Court. It has been held by this Court that the question of regularisatio~ D of the services of an employee may arise in two contingencies. It may arise firstly in situations Whf!re against an available clear vacancy. an appointment is made on ad hoc or daily-wage basis by an authority competent to do so and such appointment is continued E from time to time without any artificial bi:itf!k in service. Any such appointment may be regularized giving him security of tenure. The all important condition precedent for such regularization is that the initial entry of such an employee must be made against a sanctioned vacancy F and by following the rules and regulations governing such entry. [Para 6] [197-F-H; 198-A] 1.2. The second situation in which regularization could be granted was where the initial entry of the employee against an available vacancy was found G suffering from some flaws in the procedure in making the appointment though the person appointing was competent to make such initial recruitment and had otherwise followed the proceduce prescribed for such recruitment. A need may then arise for regularization of H the initial appointment by the competent authority with a MD. ASHIF AND ORS. v. STATE OF BIHAR AND 193 ORS. view to curing the irregularity if any in the same and with.; A a view to granting security of tenure to the incumbent. It is necessary in such situations that the initi,al entry 'of 'the · employee is not totally illegal or in breach of the' established rules and regulations governing such recruitment. [Para 7] [198-B-D] · · B 1.3. There is a distinction between an irregularity and an illegality in the making of an appointment. Where the due process of appointment has been deviated from, the Court can regularize the same. In cases where the C process itself is completely violative of the constitutional scheme underlying public employment and no procedure has been followed while granting such appointments. the Court cannot allow such· an illegality to ·Continue irrespective of the length of time for which it has D continued. [Para 8]
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