THE STATE OF BIHAR & ORS. versus DEVENDRA SHARMA

Citation: [2019] 15 S.C.R. 990 · Decided: 17-10-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 15 S.C.R.
THE STATE OF BIHAR & ORS.
v.
DEVENDRA SHARMA
(Civil Appeal No.7879 of 2019)
OCTOBER 17, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Service Law: Appointments – Illegal appointments –
Entitlement to salary or consequential rights of pension and other
monetary benefits – Held: Rights to salary, pension and other service
benefits are entirely statutory in nature in public service – These
rights, spring from a valid and legal appointment to the post – Once
it is found that the very appointment is illegal and is non-est in the
eye of law, no statutory entitlement for salary or consequential rights
of pension and other monetary benefits can arise – On facts, matter
pertaining to appointments against Class II or IV posts in the Health
Department in Government wherein Committee Report held the
appointments to be irregular appointments, illegal appointments and
appointments on forged letters and on basis thereof termination
orders were passed against the candidates who secured employment
on basis of forged documents and whose appointments were illegal
and irregular appointees were allowed to continue – In writ petition
thereagainst, the Committee Report was quashed with direction to
re-instate the employees – As regards irregular appointment, it
cannot be said that the appointment of the employees were irregular
appointments but are illegal appointment – As such appointments
were made without any sanctioned post, without any advertisement
giving opportunity to all eligible candidates to apply and seek public
employment and without any method of recruitment – Such
appointments were backdoor entries, an act of nepotism and
favoritism and thus from any judicial standards cannot be said to
be irregular appointments but are illegal appointments in wholly
arbitrary process – Furthermore, since employees have been working
for around 25 years, it cannot be said that humanitarian view should
be taken to set aside the termination order and regularise their
services so as to make them entitled to pension and other retirement
benefits.
 [2019] 15 S.C.R. 990
990
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Allowing the appeals by the State and dismissing the appeals
by the candidates, the Court
HELD: 1.1 There is no statutory rule in terms of proviso
to Article 309 of the Constitution for appointment to Class III
and Class IV categories in the State. The matter of appointment
is regulated by the Executive instructions. Chapter I of the Bihar
Health Manual deals with Organisation and functions of the Health
Department of the State. It was pointed out that from May 1,
1953, the Medical and the Public Health Departments were
amalgamated into one department called the Department of Health
under the Director of Health Services. It was pointed out that
the Director of Health Services is the appointing authority in
respect of all non–gazetted appointments in the department
including the Subordinate Medical Service. To assist the Director,
there is one Additional Director and three Deputy Directors along
with other gazetted officers including Assistant Directors of Health
Services (M. and C.H.). [Para 24] [1010-B-D]
1.2 A circular was issued by the State on September 5, 1979
with regard to retrenchment of Government/Semi–Government
employees appointed on category III and IV temporary posts on
ad–hoc basis. Thereafter, separate circulars were issued providing
for procedure for appointment on category III and IV posts on
December 3, 1980. Similar is the circular in respect of
appointment to Category IV post. On January 20, 1992, the State
issued a circular regarding transfer and posting of Class III and
Class IV employees of Health Department and it was decided
that the employees shall be decentralized at the District level. It
was communicated that transfer and posting as far as possible
shall remain within the jurisdiction of appointing officer. On the
basis of the abovesaid circulars and the Government Orders, it
is argued that the appointing authority of Class III and Class IV
posts is Director, Health Services. However, there was some
delegation in respect of certain other administrative matters but
there was no delegation in respect of appointment against Class
III and Class IV category posts. The powers conferred on
Assistant Director in terms of clause 13(c) of Chapter I of Bihar
Health Manual empowers Assistant Director (Public Health) to
appoint non–gazetted epidemic staff like Health Assistants and
STA

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