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Darbhanga Regional Development Authority v/s Ashok Kumar

    L.P.A 1011 Of 2000, C.W.J.C 14516 Of 2001, C.W.J.C 14060,14309 Of 2001

    Decided On, 03 April 2006

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE BARIN GHOSH & THE HONOURABLE MR. JUSTICE V.N. SINHA

    For the Appearing Parties: ---------



Judgment Text

BARIN GHOSH, V.N. SINHA, J.

(1.) Heard.

(2.) The Appeal and the writ petitions involve questions of facts and law which are so connected with each other that we felt it would be convenient to decide all of them together. Accordingly, we heard the respondents in L.P.A. first and then called upon the writ petitioners to address us. We heard the learned Counsel appearing on behalf of Darbhanga Regional Development Authority and the State. We now propose to dispose of the appeal as well as the writ petitions by this common Judgment.

(3.) Darbhanga Regional Development Authority is a body corporate constituted by and under the Bihar Regional Development Authority Act, 1981, Section 6 of the Act is as follows: 6. Staff of the Authority:

(1) The Authority shall have a Secretary, to be appointed by the State Government, who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority, or the Chairman.

(2) The Authority may subject to such control and restrictions as may be prescribed by rules approved by Government appoint such number of other officers and employees (including experts for technical work such as Economic Planner, Transportation Planner, Health and Education Planner, Data Information System Planner) as may be necessary for the efficient performance of its functions and may determined their designations and grades.

(3) The Secretary, and other officers and employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and such allowances if any, and shall be governed by such conditions of service as may be determined by regulations: Provided that appointments to posts with minimum salary of Rs. 500 shall be made on the advice of the Bihar Public Service Commission, The Authority may appoint a person on any post carrying salary above Rs. 500 after approval of the State Government and the total period of such appointment shall in no case exceeds six months.

(4) The authority may appoint a consultant on hire to assist in planning and other tasks, provided that in ca

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se a consultation fee exceeds rupees five thousand of a consultant, prior approval of State Government shall be necessary.

(4.) By Section 80 of the Act, the State Government has been authorised to make rules to carry out the purposes of the Act. By Section 81 of the Act, the body corporate i.e. the authority constituted by and under the Act, has been authorised to make regulations consistent with the Act and the rules made thereunder to carry out the purposes of the Act which, amongst others, may provide for the salaries, allowances, gratuities and conditions of services of the Officers and employees of the Authority and disciplinary matters relating to them.

(5.) These provisions of the Act make it abundantly clear that the Secretary of the Authority shall be appointed by the State Government but any other officer or employee of the authority shall be appointed by the authority itself. Those further make it clear that unless control and restrictions are imposed by the State Government by making rules, it is the authority, who alone is entitled to give appointment to all other officers and employees of the authority. However, the statute imposes an obligation upon the authority to appoint on the advice of the Bihar Public Service Commission when the salary payable to the appointee is Rs. 500/- or more. At the same time, the statute grants a discretion to the authority to appoint a person on any post carrying salary above Rs. 500/- after approval of the State Government is obtained, but directs that such appointment shall in no case exceed six months i.e. the appointment will automatically stand terminated after six months. There is no direction in regard to appointment to posts which carry salary of Rs. 499/- or less, which suggests that unless the State Government has prescribed by rules any control or restriction, the authority has every power to appoint a person in a post carrying salary of Rs. 499/- or less.

(6.) On our records, a draft rule proposed to be made by the State Government was brought in. There is nothing to show that the said draft rule was finalized and the same became the applicable rule. In those circumstances, we have proceeded on the basis that the State Government has not yet made any rules and accordingly, has not yet prescribed any control or restriction in the matter of giving appointments by the authority and accordingly, in relation to appointments to be given in the posts carrying salary of Rs. 499/- or less, the authority has the last say.

(7.) The learned Counsel appearing on behalf of the respondents in L.P.A. and the learned Counsel appearing for the petitioners in the writ petitions have drawn our attention to the fact that before the Act was passed, Ordinances were promulgated which contained identical provisions and first of such ordinances came into effect in 1974.

(8.) It was urged on behalf of the respondents in the L.P.A. and the writ petitioners in the writ petitions that in 1974, Group-C and Group-D employees of the State Government were drawing salary less than Rs. 500/- and accordingly, the legislature consciously did not impose any restriction upon the authority in the matter of appointment of Group-C and Group-D employees. It was urged that in 1981, when the Act came into effect the salary of Group-C and Group-D employees had been enhanced and as a result, they started getting salary more than Rs. 500/-, but while interpreting the provisions contained in Section-6, one must take note of the time when the legislature had applied its mind in framing the Act in order to cull out the object of giving carte blanche to the authority in the matter of appointing people in the posts carrying salary of Rs. 499/- and less. This submission was made inasmuch as on facts, it is not in dispute that the respondents in the L.P.A. and the petitioners in the writ petitions at the time of their appointments were offered salary of more than Rs. 500/-.

(9.) The learned Counsel for the respondents in L.P.A. and the learned Counsel for the petitioners in the writ petitions submitted that the scheme of the Act would show that the authority concerned is independent of the State Government and is required to arrange its own funds and there is no provision that the State Government would provide any assistants to the authority and accordingly, in this back ground it must be construed that the legislature at the time of framing the Act did not impose any restriction in the matter of appointing Group-C and Group-D staff, unless by rules the State Government decides to impose any such restriction. It was urged that it was within the competence of the State Government to impose such restrictions by making rules, but the State Government has not made any such rules, and therefore, it must be deemed that the authority was competent to appoint without permission of the State Government and without obtaining any advice of Bihar Public Service Commission Group-C and Group-D employees.

(10.) It may be possible that the reason for not imposing any restriction in the matter of appointment of employees drawing salary of Rs. 499/- and less was that the legislature intended to authorize the authority to appoint Group-C and Group-D employees without any restriction, but then in no part of the Act the legislature has left any thing from which such intention can be cull out. On the contrary, a look at Sub-section 2 of Section 6 of the Act will clearly demonstrate that the legislature while framing the Act was contemplating people to be appointed by the authority, who are not normally appointed by the State Government and accordingly, it would be too far fetched on our part to say that the legislature at the time of framing of the Act was contemplating of giving a free hand to the authority to appoint Group-C or Group-D employees. The legislature by words spoken loudly permitted the authority to appoint people drawing salary of Rs. 499/- or less without the advice of the Bihar Public Service Commission and without the approval of the State Government, and not Group-C or Group-D employees. In the event, proviso to Sub-section (3) read with Section 2 of Section 6 of the Act is read down to include authorisation to appoint Group-C or Group-D employees, then that would tantamount to insertion of some thing which the legislature deliberately did not insert in the section.

(11.) In those circumstances, there cannot be any dispute, on plain reading of the provisions contained in the Section, which according to us do not contain any ambiguity, that although, the authority had full authority to appoint its officers and employees it could appoint such officers and employees carrying salary of Rs. 500 and more either on the advice of the Bihar Public Service Commission or after obtaining the approval of the State Government and not otherwise.

(12.) There is no dispute that the respondents in the L.P.A. and the writ petitioners in the writ petitions were appointed by the authority on posts carrying salary more than Rs. 500/- without there being any advice to that effect by the Bihar Public Service Commission and without the approval of the State Government. Such appointments could not be given by the authority. It must be kept in mind that the authority, having been constituted by the Act, could act within the four corners of the Act but could not act beyond the provisions contained in the Act, When the Act dealt with a subject, it was incumbent on the authority to act in accordance with the directions of the legislature as contained in the Act in relation to that subject and it could not act contrary to the directions contained in the Act in that regard.

(13.) In those circumstances, we have no other option but to hold that the appointments of the respondents in the L.P.A. and the appointments of the writ petitioners in the writ petitions were per se illegal for the same were beyond the competence of the authority.

(14.) It appears to be an admitted position that since after the Constitution of the authority, it did not make any effort to appoint any Group-C or Group-D employee in exercise of its powers contained in Section 6 of the Act. Its employees appointed in Group-C or Group-D posts carry salary of Rs. 500/- and more. It did not approach at any point of time Bihar Public Service Commission to obtain advice for giving appointment in the said posts. At the same time, it also did not approach the State Government to take prior approval to give such appointments. On the contrary, it went on recruiting Group-C and Group-D employees and went on giving them remunerations at Rs. 500/- or more. However, while giving such appointments, the authority represented that such appointments are adhoc appointments. In C.W.J.C. No. 14309 of 2001, it is the contention of the petitioners that after having had appointed the petitioners as adhoc employees carrying salary of Rs. 500/- and more, an attempt was made by the authority to find the best amongst all then available and accordingly, a notice was put up which was responded by many and thereupon a selection was made when they were once again appointed as adhoc employees. It has not been urged that any such thing had been done either at the instance of the State or on the advice of the Bihar Public Service Commission,

(15.) In 1991, five of those adhoc employees, after having had worked as adhoc employees, approached this Court by filing C.W.J.C. No. 3832 of 1991 seeking regularisation of their services, A Division Bench of this Court dealt with the said writ petition when this Court directed the authority to regularize the services of the said 5 adhoc employees against vacant posts which are in existence but at the same time observed as follows: We make it clear that this order was passed after hearing the. parties at great length and be make it clear that it will not be a precedent for any other case.

(16.) It appears that a Special Leave Petition was filed against the said Judgment and order of this Court passed in C.W.J.C. No. 3832 of 1991, when the Hon'ble Supreme Court passed the following order. The High Court has already said that the authority may take the decision regarding regularisation of services of the respondents, namely, the petitioners therein within two months from the date of communication of the High Court's order. It is needless to say that regularisation of service of the respondents should be made in accordance with the existing rules and taking into consideration of the fact that the respondents have already acquired certain benefits in the service having served for more than a years. With this observations, the Special Leave Petition is dismissed.

(17.) We were told that the petitioners in C.W.J.C. No. 3832 of 1991 are still working, although, there being no existing rule for regularisation, their services have not yet been regularised and they are being treated even until now as adhoc employees.

(18.) It appears that in 1995, the legislatures brought to the notice of the legislature that despite such legislation made by them, the authority concerned is giving appointments in breach thereof. At that stage, the matter was enquired into and it transpired that all such appointments are contrary to the provisions of Section 6 of the Act. However, in the matter of implementation of such finding, while the services of the respondents in L.P.A. were terminated in 1995, services of the petitioners in C.W.J.C. No. 14309 of 2001 were granted in 1998 and reaffirmed in 1999 in the manner as indicated above. In the other writ petitions, some of the petitioners had been appointed in 1987, when some others too were appointed, who died and in their place their heirs were appointed in 1993 on compassionate ground. Be that as it may, in 2001, a decision was taken to terminate the services of all such appointees, but the fact remains that those five appointees, who had approached this Court in C.W.J.C. No. 3832 of 1991, still continues to serve as adhoc employees of the authority, although, in their cases too there was neither any advice by the Bihar Public Service Commission nor there was any approval by the State Government.

(19.) The respondents in the L.P.A. filed C.W.J.C. No. 1313 of 1995. In that, they challenged the order by which their appointments were terminated. In the said writ petition, the respondents in the L.P.A. held out that though they were adhoc employees but the fact remains that they were made to work for a considerable period of time and accordingly, they acquired a right at least to obtain a notice before termination of their services. By the order impugned in L.P.A., a learned Single Judge upheld such right and quashed the orders terminating the services of the respondents in the L.P.A. on the ground that before the order had been passed no notice was given to the respondents in L.P.A.

(20.) At the hearing of the L.P.A., we were not shown any Judgement or authority or even a discussion that an adhoc employee has a right to receive a notice before it is decided to terminate his adhoc employment. Having regard to such situation, the learned Counsel for the respondents in L.P.A. submitted that an adhoc employee has at least such right so that in replacement of him another adhoc employee is not appointed. It was stated that promptly after removing the respondents in L.P.A. in the year 1995, the petitioners in C.W.J.C, No. 14309 of 2001 were appointed. It was contended that an adhoc employee cannot be removed for the purpose of appointing another adhoc employee without indicating that the employee, who is being removed, has got any deficiency. The submission as made by the learned Counsel for the respondents in L.P.A. are so sound that there is hardly any scope of saying something negative thereto, but the fact remains that the respondents in L.P.A., were appointed as adhoc employees, contrary to the statute and accordingly, such appointments are per se illegal and at the same time, the appointments of the petitioners in C.W.J.C. No, 14309 of 2001, being contrary to the statute, are per se illegal and accordingly, question of removing one set of adhoc employees for the purpose of accommodating another set of adhoc employees in the instant case did not arise.

(21.) It was next contended on behalf of the petitioners in C.W.J.C. No. 14060 of 2001 that the petitioners in the said writ petition were appointed on adhoc basis, though in the similar manner as indicated above, but such appointments in most of the cases had been made in 1987 except a few in 1993 and those people have worked for a long period of time and accordingly, it would be unjust on the part of the State or the authority to throw them on the street. It was submitted that half of their working life has been spent in the organization. The learned Counsel appearing on behalf of the petitioners in C.W.J.C, No. 14516 of 2001 adopted the submissions made by the learned Counsel appearing in C.W.J.C, No. 14060 of 2001. The learned Counsel submitted that the law as stands, obliges the appointing authority to set at naught an irregular appointment within a reasonable time and not to do away the same after lapse of a considerable period of time. It was contended that after making people work for more than 14 years, it was not appropriate on the part of the authority or the State Government to act in the manner as they have acted against the petitioners in the said writ petitions.

(22.) It is true that when an appointment or a class of appointments are irregular, steps against those irregular appointments should be taken within a reasonable time and it is not permissible to cancel such appointments on the ground of irregularity after lapse of a considerable period of time, but this philosophy of law is applicable only in relation to irregular appointments and not to illegal or void appointments. An appointment contrary to law is void ab initio. Anything, which is void ab initio does not exist. Anything, which does not exist cannot give rise to any right. In those circumstances, even if a person has worked for his life, but on a void appointment, the same cannot be cured at any time.

(23.) The learned Counsel for the writ petitioners contended that while the services of the writ petitioners have been terminated, no step has been taken by the authority or by the State to terminate the services of those fortunate five adhoc employees, who approached this Court by filing C.W.J.C. No. 3832 of 1991. It was submitted that while termination of their services was not an issue before this Court in the said writ petition and the issue was confined only to regularisation and there being no finding that their appointments, are valid appointments, the authority has taken no step to remove them from the services although, they stand in the same position as that of the petitioners and accordingly, it was insinuated that the authority is acting in a partial manner. We have perused the Judgment of this Court rendered in the said writ petition as well as the directions of Hon'ble Supreme Court rendered in the S.L.P. referred to above and we have found that neither in the Judgment of the Division Bench nor in the Judgment of the Supreme Court, there is any discussion about the validity of the appointment of the petitioners in the said writ petition. The issue that was addressed in those judgments was confined only to regularisation. In those circumstances, it may be correct as contended by the counsel for the petitioners that the authority is acting in a partial manner.

(24.) However, having concluded that the appointments of the petitioners and the respondents in the L.P.A. were void ab initio and the appointments of those five persons being not an issue in any of these proceedings, while it would not be possible for us to protect the appointment of the petitioners before us and the respondents in the L.P.A. it would not be possible for us to make any comment in relation to the appointments of those five persons, but hopefully, the authority and the State will take appropriate action in accordance with law so that the black paint of partiality as pasted on the authority and the State by the petitioners and the respondents in L.P.A. is removed at an early date.

(25.) With these observations, we allow the L.P.A. and set aside the order of the learned Single Judge and at the same time, we dismiss the writ petitions.

(26.) While allowing the L.P.A. and dismissing the writ petitions, we, however, make it clear that the authority concerned shall appoint officers and employees strictly in accordance with the directions contained in the statute and if they attempt to appoint such employees, whose duties have been discharged by the respondents in L.P.A. and the petitioners in the writ petitions, the authority shall permit the respondents in L.P.A. and the petitioners in the writ petitions to offer themselves as candidates. Having regard to the fact that no regulations have yet been made prescribing conditions of services of the officers and employees of the authority, there is no age bar as of today for entry in the services of the authority and accordingly, on the ground of age bar, candidature of neither the respondents in L.P.A. nor the petitioners in the writ petitions shall be refused. This disposes of the matters
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