Paragraph numbers below are the court’s original numbering, recovered from the source text.
28. Whether non-information to the employment exchange for filling c up the posts caused any dent to the appointments? Para 47 of Piara Singh's case states that where an ad hoc or tem- porary employment is necessitated on account of exigency of administra- tion, the incumbent should be drawn from the employment· exchange. This requirement has a rider namely, "unless it cannot brook delay". As already stated, there was a pressing cause here,, which is almost writ large on the face of the record. The non-information to the employment exchange had, therefore, caused no dent to the appointments.
29. Was there non-reservation of posts for Scheduled Castes/ Scheduled Tribes? If so, whether the same introduced any legality in the appointment of general category candidates? The facts as unfold in the present appeals show that posts had in fact been reserved. In one TB Centre, 16 Scheduled Castes, 5 Scheduled Tribes, 16 Backward I, and 14 B·ackward II came to be appointed, along with 16 general category candidates. This tabulation is at page 143 of paper book in SLP (C) Nos. 12934-35of1994. A perusal of the paper book in SLP(C) Nos. 13203-13 of 1994 shows that Scheduled Castes/Scheduled Tribes candidates were appointed to the posts of B.C.G. Technicians. The an- nexure at page 116 gives the names of such candidates, and the list at pages 117 to 119 shows that there were many Backward Class I and Backward Class II appointees also. This shows that there was not only reservation for Scheduled Castes and Scheduled Tribes but appointments too had been given. That this was the position in all the centres cannot, however, be known from material on record. The appellants' counsel are justified in saying that they could not have produced documents to show as to how this requirement was satisfied in all the centres. The burden of proving this conclusively cannot be thrown on the appellants, as after all it is the State which had terminated their services, inter alia, on this ground, and so, the burden has really to be discharged by the State, to do which virtually G nothing has been done, may be because the Secretariat records having been burnt, nothing is available. It may, however, be that the District Records could have perhaps thrown some light, but they were shown no light. .
30. The materials available show there was reservation for SC/ST candidates. The question of illegality in appointment of general candidates H on the ground of non-reservation does not, therefore, arise. ASHWANIKR.v. STATEOFBIHAR[HANSARIA,J.]
31. Whether the regularisation had been made pursuant to recom- mendation of the Selection Committee visualised by the aforesaid OM? This aspect has already been dealt above. To reiterate, there are materials on record to show that in soms cases regularisation was pursuant to the recommendation of a properly constituted Selection Committee. I am conscious that one swallow does not make a summer. But then, to have required the appellants to bring on record the proceedings of other Selec- tion Committees, if there were any, would have placed an unjustified burden on them. What has been stated above about the State's burden applies qua this question also.
32. Whether non-preparation of any panel by the Selection Commit- tee provided a good ground to regard the appointments as violative of the prescribed procedure? c A perusal of the O.M. of 3rd December, 1980 does show that the Selection Committee was required to prepare a merit list. That such a merit D · list/panel was prepared in some cases would be evident from a perusal of the paper book in SLP(C) Nos. 13203-13 of 1994. But then, it cannot be said that this was done in all cases. Even so, for the reasons already alluded which would apply proprio vigore to this aspect also, there is no justifica- tion in finding infirmity in all the appointments because of lack of materials E on record to show that the appointments had been made without prepara- tion of merit list/panel.
33. Whether natural justice had been complied with before termina- tion of the services of the appellants? What are the requirements of the natural justice cannot be laid down in any straight jacket This is a well settled position in law. The facts and circumstances of the case in question would. alone provide the answer whether natural justice has been complied with or not. This is so well settled position by now that I do not propose to advert to any case law on G this subject.
34. It is equally well settled that where adverse civil consequences follow pursuant to an order of an authority, natural justice has to be complied with ordinarily. Law, however, permits exclusion of natural jus- tice in some cases, like urgency. Shri Verma submits that present is a case H whether natural justice got excluded because of adoption of unfair means while seeking appointments. In support of this contention, strong reliance is placed on the decision of this Court in Bihar School Examination Board v. Subhash Chandra Sinha and Others, [1970] 3 SCR 963. According to Shri Shanti Bhushan, this decision has Jtot said anything contrary to the well B settled principle that where adverse civil consequences follow natural justice has to be ccmplied with.
35. Let it be seen which of the aforesaid contentions merits accep- tance. In the aforesaid case this Court examined the question whether notice to the respondents was necessary before cancellation of their ex- amination because of adoption of unfair means at an examination centre. The question. of giving notice required examination, as it was contended that natural justice required the same. On the facts of that case it was held that notice was not necessary. This view was taken because the Court was satisfied about adoption of unfair means, relating to which an independent enquiry had been held by Unfair Means Committee of the appellant Board. Shri Verma states that as in the present case also the appellant has adopted unfair means, no notice was required to be given.
36. A close perusal of the judgment shows that was not a case of any particular individual being charged with adoption of unfair means, but of the conduct of all the examinees or a vast majority of them at a particular centre. The Court raised a poser that as the ql.lestion was not of charging any one individual with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board have given an opportunity to all the candidates to represent their cases? The Court thought it was not necessary, because the examination as a whole was being cancelled. It was further observed that as the Board had not charged any one with unfair means so that he could claim to def end himself. It was, therefore, concluded that it would be wrong to insist that the Board must hold a detailed enquiry into the matter and examine each case to satisfy itself which of the candidates had not adopted unfair means.
37. The facts of the present case are poles apart. Here the allegation is undoubtedly against each appellant. Even if it were to be that some among them had adopted unfair means, the appointments of others could not be set aside because of that. It was not a question of some illegality of H the general nature like adoption of a wrong procedure in selection, like ASHW ANI KR. v. STATE OF BIHAR [HANSARIA, J.] fixing of very high percentage marks for viva voce. It may be that a case A where such illegality is committed, individual notice would not be neces- sary. I, therefore, do not think if the ratio in Subhash Chandra's case could assist the State to contend that individual notice was not necessary.
38. I may deal with another decision pressed into service by Shri Verma in this context. The same is S.K. Balasubramanian v. State of Tamil Nadu, [1991) 2 SCC 708. The learned counsel has read out to me from this decision paragraph 9 at pages 713 and 714 and contended that because what has been stated therein, it could be said that even if an order is inva1id, there would be no question of affording an opportunity of hearing. I am afraid that the learned counsel has misunderstood the purport of what has been stated therein. I have said so because a perusal of that para shows that this Court had said about no question of affording an opportunity of hearing to the petitioners before passing the impugned order dated March c 3, 1980, because the Court found that order was founded on Government orders dated November 16, 1976 and June 15, 1977, which were invalid D according to the Court as those orders had altered the principle of fixation of seniority contained in Rule 35 of the General Rule, which could have been done only by suitably amending the Rule, and not by issuing ad- ministrative instructions. Having found that the order in favour of the petitioners dated March 3, 1980 was founded on untenable principle of fixation of seniority, the court said, and with respect rightly, that no opportunity was required to be given to the petitioners who sought to support their seniority position on the principles as embodied in the Orders dated November 16, 1976 and June 15, 1977. The foundation of the Order dated March 3, 1980 having fallen to the ground, no opportunity was necessary to be given to sustain the Order dated March 3, 1980, as that order was foun\ied on wrong principles of seniority. This being the position, I would indeed say that Shri Verma may not have advanced this contention.
39. Having held that natural justice was not excluded, let it be known what was done to satisfy this in the present cases. Materials on record show G that at first attempt was made to serve individua1 notices, whereupon the serving person were even mis-handled; so, recourse was taken to newspaper publication. This was done in some Hindi local newspapers. It is on record that pursuant to the notice so given good number of persons likely to be affected had appeared before the aforesaid committee. It may be that some persons did not appear before the screening committee, H despite knowledge of the same. From the materials on record, we are not in a position to know what is the total number of such persons. c
40. To satisfy whether newspaper publication substantially complied with the requirement of natural justice, we had desired to know from Shri Verma which were these newspapers, what was their circulation and at which places the newspapers had circulation. Shri Verma could not throw any light on these aspects. His contention was that as some of the affected persons had known about the publication, we may presume that they must have informed their colleagues, and the news must have spread like a wild fire. I would demur to accept these contentions. It has also been noted that some of the incumbents had read only upto Class IV, which would show that they are not literate and enlightened enough to read newspapers as a habit.
41. So, despite my being satisfied that a case for newspaper publica- tion was made out, as no effort being made to serve individual notices, there was non-handling of serving persons, the publication of the type undertaken did not, however, satisfy the call of natural justice. As no fetish should be made about natural justice, it should not be allowed to become farce also. The giving of opportunity to show-cause in the present cases having been made known through newspapers, I do think that the oppor- tunity given was not adequate and reasonable. Even so, I have not felt inclined to set aside the termination order on this ground, as we ourselves heard the appellants, which can be taken as a sort of post-decisional opportunity, which could be said to have met the requirement of natural justice. CONCLUSION
42. Having expressed my views on the questions of law and fact I would·conclude as below.
43. Broadly stated, the position is that Dr. Mallick had- undoubtedly out-stepped confines of his powers and had betrayed the confidence reposed in him. I have said so because it is clear that as against about 2500 sanctioned posts, he was instrumental in giving/directing appointments to about 6000 persons. But I am clear in my mind that all the persons so employed had not aided, abetted or instigated Dr. Mallick in doing so. The difficulty is that we are not in a position to find out who the aiders/abetters ASHWANI KR. v. STATE OF BIHAR [HANSARIA, J.] were. If the State could have made efforts to find this aspect, with reference A to the records which should have been available at the District Head- quarters(fB Centres, it should have been possible to find out, who among the 6000 and odd persons, had been legally or validly appointed. This has, however, not been done. The question is whether despite this in- action or non~iiction, there is justification in taking the view that the 1363 appellants B before us were among these who were illegaly appointed. The State counsel submits that we should hold so; Shri Shanti Bhushan contends that there is no basis to hold so.
44. I have given my considered though to this all-important aspect of the case and, according to me, as about 2500 persons could have been C appointed by Dr. Mallick, and as there are materials on record to show that regular appointments had also been made (how many, we do not know) and as it is not possible to know who the regularly appointed persons were, facts permit to say that the appellants before us, whose number is 1363, may be among those who were regularly appointed. I have thought D it fit to take this view because of the mandate in Article 21 of the Constitution, which would not permit taking away livelihood of so many of the incumbents unless satisfied that they were :::mong the persons who had not been legally and validly appointed. It deserves to be pointed out that as the State has taken away the rights which had come to inhere in the appellants, the primary burden is on the State to establish that illegality E had been committed in giving appointments to the appellants. This burden the State has undoubtedly failed to discharge qua the appellants. The benefit of the same has to be made available to them.
45. I would further say that in such matters there is (some) justifica- tion to keep human consideration also in mind, as urged by Shri Shanti Bhushan by referring to H.C. Puttaswamy v. Hon'ble the Chief Justice, Kamataka High Court, [1990] Supp. 2 SCR 552. In that case this Court, despite having regarded the impugned appointment as· invalid, refused to recognise the consequence which would have involved uprooting of the appellants, because of which it adopted a humanitarian approach, as it G was felt that the appellants "seem to deserve justice ruled by mercy". Not only this, the Court went to the extent of giving all the benefits of past service after stating that the appellants shall be treated to have been regularly appointed. The learned counsel prays that we may view the cases at hand also similarly, as any adverse order would uproot 1363 families H inasmuch as virtually all the appellants are from poorer section of the society and it may well be that the concerned families have no other bread-earner. I have felt inclined to bear this aspect also in mind, albeit tangentially. Having noted that materials on record do not permit to hold that the appellants were among those who were appointed beyond the sanctioned strength, my conscience does not permit to punish them for the wrong or 'sin which might have been committed by others.
46. According to me, therefore, the legal, just, fair and r-1..,'dsonable order to be passed in these appeals would be to say that all the 1363 appellants would be deemed to have been regularly appointed and I would, therefore, set aside the termination order qua them. It is made clear that this order would not in any way be taken advantage of by anybody except 1363 C!ppellants before us.
47. The appeals are, therefore, allowed by setting aside the termina- tion order qua the appellants alone and directing the reinstateJl!.ent of all them. Appropriate orders in this regard would be passed within two months from today. The appellants would not, however, be paid any amount towards back wages/salaries, but they would get other service benefits.
48. Before parting, I would observe that nothing stated by me relating to the appellants would enure to the benefit of Dr. Mallick in the on going: inquiry against him. It would be concluded as per the 'materials collected or to be collected and the inquiry against him would take its own course. Not only this, I would desire the conclusion of the inquiry against Dr. Mallick most expeditiously. In view of disagreement, we direct the Registry to place all the matters before a Bench of Three Judges for decision. R.A. Matter disposed of.