State Of Bihar and Ors vs Chandreshwar Pathak

State Of Bihar and Ors vs Chandreshwar Pathak

AMAN TYAGI, UFYLC, JAIPUR, RAJ.

ABSTRACT / HEADNOTE –

This case analysis scrutinizes the Supreme Court judgement in State of Bihar and Ors vs Chandreshwar Pathak. The case includes the termination of  Chandreshwar Pathak from the post of constable in Bihar police , which he had secured temporarily in 1988 without undergoing any selection process or advertisement as mandated by law henceforth violating basic constitutional principles like Article 14 and 16 .

The case also raises issues about the constitutional validity of backdoor appointments made without adhering to the established norms of equality and non-discrimination . It also explores whether employees like Mr. Pathak who have been appointed through improper/illegal means can invoke principles of equity and natural justice to retain their jobs based on years served. (Which in the present case was 16 years )

The Supreme Court in its final judgement ruled that Pathak’s appointment was void ab initio and unconstitutional in nature . Hence his termination order was valid . The court opined that years of service cannot validate what is fundamentally illegal and unjust . The judgement served as a crucial precedent against backdoor hiring specially in government jobs and also emphasised on adhering to the constitutional principles of equality and non-discrimination it also advocated to follow the requisite rules of appointment while employing any individual  in the public sector .

CASE DETAILS

Judgement Cause TitleState Of Bihar and Ors vs Chandreshwar Pathak
Case NumberCivil Appeal No. 7392
Judgement Date7th August , 2014
CourtSupreme Court of India
QuorumDivision Bench – Adarsh Kumar Goel, TS Thakur.
AuthorAdarsh Kumar Goel
CitationAIR 2014 SC 3752
Legal Provisions InvolvedArticle 14 of the Constitution (Right to Equality)   Article 16 of the Constitution (Equality of opportunity in matters of public employment)   Article 311 (Procedural safeguards relating to dismissal )

INTRODUCTION AND BACKGROUND OF JUDGEMENT-

  • This particular case deals with the validity of the appointment and subsequent termination of Chandreshwar Pathak as a constable in Bihar Police . It raises important questions such as the constitutional requirements for employing an individual while refereeing Article 14 and 16 which deals with ‘right to equality’ and ‘prohibition of discrimination in employment in any government office’ respectively .
  • This case also serves as an example of blatant disregard of the acceptable employment practises .As we see the temporary appointment of Chandreshwar Pathak as a constable by the Inspector General of police on 14.01.1998 was made without any due process of advertisement and selection , henceforth showing a disregard for employment practises and constitutional principles.

FACTS OF THE CASE

  • On 14.01.1988 , Chandreshwar Pathak was temporarily appointed as a constable by the inspector General of police , Criminal investigation department , Patna , Bihar without following the due process of advertisement or selection.
  • On 04.09.2000, The Department of Home (Police), Government of Bihar issued directions to police headquarters, Bihar to review irregular appointments made without following any due process of law such as backdoor appointments and remove such appointees from service from immediate effect.
  • On 10.09.2003 , After thorough investigation a show cause notice was issued to Chandreshwar Pathak (Respondent) asking why his appointment should not be cancelled . Despite his reply , an order was passed on 26.09.2003 terminating his services .
  • Mr. Pathak challenged his termination order before the High Court by filing a writ petition . On 09.04.2010 , the learned single bench judge of the high court dismissed Pathak’s writ petition .
  • Mr. Pathak subsequently appealed against the single bench order . On 05.01.2012, the division bench allowed Pathak’s appeal and quashed the earlier passed termination order .
  • Aggrieved by the division bench judgment , State of Bihar (Appellant) appealed to the Supreme Court. The major issue before the Supreme court was whether the temporary appointment of Mr. Pathak on 14.01.1988 without following any due process of selection or advertisement was valid or not .
  • On 07.08.2014 , the supreme Court allowed the appeal of the State of Bihar , set aside the order of the division bench of the High Court , and restored the single judge order dismissing Pathak’s writ petition against his termination .

LEGAL ISSUES RAISED

  1. The primary legal issue was whether Mr. Pathak’s initial appointment as a constable in 1988 without any advertisement or selection process was valid and constitutionally permissible under Article 14 (Right to Equality) and Article 16 ( Prohibition of discrimination in matter of public employment ) .
  1. The case also raised the issue of backdoor appointments and how this is a clear example of violation of constitutional principles and non-adherence to already established selection process .
  2. This case also examined whether Mr. Pathak’s appointment , being irregular , was protected under Article 14 (equality before law ) and Article 311 ( Procedural safeguards relating to dismissal ) of the constitution .
  3.  One more major issue raised was whether employees who were illegally/improperly appointed, but worked for many years (In the present case for 16 years) , could claim reinstatement (being taken back to service) on grounds of natural justice, despite their initial appointment itself being illegal.

PETITIONER/ APPELLANT’S ARGUMENTS-

The arguments made by the petitioner’s side to substantiate their point with regards to the illegal/improper appointment of Mr. Pathak and also to quash the division bench order are stated as follows –

The present case was a blatant backdoor appointment of the respondent(Mr. Pathak ) without any advertisement or selection process. The appointment order itself mentions that it was temporary in nature which could be terminated without serving a notice .

The Petitioner’s counsel also relied on the Hemkant Jha case, presenting the important details of the case  – “It was a group of identical matters in front of the Patna High Court on termination of services of police constable without any selection process , the High Court upheld the termination noting that the appointments were backdoor without following procedures in rules for selection the court observed that such backdoor appointments do not confer any rights and the court cannot confer benefits like regularisation or reengagement , Even the SLPs filed against the judgement of the High court were dismissed by the supreme court .” [1]

The petitioner counsel also contested that the High Court erred in not considering that the respondent’s appointment was illegal and without following any due process as required under Article 14 and 16 of the constitution to substantiate this point the counsel relied on another case law State of Orissa v. Mamta Mohanty, presenting the important details of the case  –

“The Supreme court held that no valid appointments can be made without inviting applications from eligible candidates through advertisements .Calling names form employment exchange alone is not sufficient , advertisement is mandatory as per Article 14 and 16 . Such appointment without due process deprives eligible candidates from being considered and a person so employed is not entitled to any relief like salary. Compliance with equality clause in Article 16 requires every appointment to be made through open advertisement to allow all eligible persons to compete on merit.”[2]

RESPONDENT’S ARGUMENTS-

The primary argument on the basis of which the respondent’s counsel argues against the termination of his client (Mr. Pathak) is statedas “Learned counsel for the respondent supported the impugned order and submitted that having regard to the fact that the respondent had already served for 15 years, termination of his services was not called for.”[3]

So essentially the respondent’s counsel argued that though his client’s initial appointment was illegal /improper , he should be allowed to continue in service considering the long duration of 16 years that he had already served .This argument seems to be based on the principle of natural justice and equity.

RELATED LEGAL PROVISIONS-

  1. Article 14 –“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” [4]
    1.  Article 16 –  Article 16 of the Indian constitutiontalks about the right of equal opportunity in the matters of public employment. It states that:-“1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.

4. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of Scheduled Castes and the Scheduled Tribes which in the opinion of state are not adequately represented in the services under the State.

(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.

5. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.”[5]

(iii) Article 311 – This article specifically deals with the dismissal , removal or reduction in rank of persons employed in civil capacities under the state or union .It states that –

“(1)No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a Slate shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2)No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges;

Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:

Provided further that this clause shall not apply–

(a)where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b)where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or

(c)where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State, it is not expedient to hold such inquiry.

(3)If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”[6]

JUDGEMENT-

The Supreme court allowed the appeal filed by the State of Bihar , set aside the order of division bench of the Patna High court dated 05.01.2012 , and restored the order of the single judge of the High Court dated 09.04.2010 dismissing the writ petition filed by Chandreshwar Pathak  challenging his termination from service .

In its conclusive ruling, the Supreme Court affirmed the dismissal of Pathak’s employment, pointing out that his initial appointment as a constable in 1988 violated constitutional principles outlined in articles 14 and 16. The Court emphasized the absence of any advertisement or proper selection process during his initial hiring, thereby reinforcing the violation.

RATIO DECIDENDI

  1. Public posts should be filled through a rigorous process, adhering to the   constitutional requirement of equality in public employment.
  2. Appointments made without proper advertisement or a selection process are illegal and void ab initio (no legal effect from inception) . Individuals appointed through such means have no entitlement to the position.
  3. Those unlawfully appointed cannot seek protection under Article 14 (Right to Equality) or 311 (safeguards against dismissal) of the constitution.
  4. The duration of service after an unlawful appointment is inconsequential and does not grant the employee the right to seek remedies such as absorption, regularisation, or reinstatement.
  5. CONCLUSION & COMMENTS-

The case, being an order of the apex court, sets a precedent for deciding cases with a similar set of facts or issues. This case involves the violation of basic constitutional principles such as Article 14 and 16, which also form part of the fundamental rights guaranteed to us by our constitution. Furthermore, the case delves into the issue of backdoor appointments and how they can significantly impact the selection process. Finally, the case also engages in a discussion on natural justice and its potential role as a basis for reappointment in the present case.

I believe the apex court did justice to this case by permitting the appeal filed by the State of Bihar and ultimately deciding the cases based on merits rather than relying on irrelevant facts or issues. The court, in reinstating the judgment of the single judge bench and subsequently overturning the order of the division bench, contributed to instilling faith in the apex judiciary and its legal wisdom.

REFERENCES-

Important Cases Referred-

  1. Secretary, State of Karnataka vs. Uma Devi [(2006) 4 SCC 1]
    1. Delhi Development Horticulture Employees’ Union v. Delhi Admn. [Citation not provided]
    1. State of Haryana v. Piara Singh
    1. Excise Supdt. v. K.B.N. Visweshwara Rao
    1. Arun Tewari. v. Zila Mansavi Shikshak Sangh
    1. Binod Kumar Gupta v. Ram Ashray Mahoto [(2005) 4 SCC 209]
    1. National Fertilizers Ltd. v. Somvir Singh
    1. Telecom District Manager v. Keshab Deb
    1. State of Bihar v. Upendra Narayan Singh
    1. State of M.P. v. Mohd. Ibrahim
    1. Amrendra Singh vs. State of Bihar [1999 (3) PLJR 984]
    1. Hemkant Jha etc. etc. vs. The State of Bihar & Ors. [L.P.A. No. 625 of 2003 etc. decided on 18.7.2007]
    1. Sudhir Kumar case
    1. State Of Orissa & Anr vs Mamata Mohanty

Important Statutes Referred

  1. Article 14 of the Constitution of India (Deals with the Right to Equality)
  2. Article 16 of the Constitution of India (Deals with Equality of Opportunity in Public Employment)
  3. Article 311 of the Constitution of India (Deals with Safeguards against Dismissal of Government Employees)

[1] Hemkant Jha And Ors. Etc. Etc. vs The State of Bihar And Ors. on 18 July, 2007 (no date). Available at:https://indiankanoon.org/docfragment/298717/?formInput=Hemkant%20Jha%20 (Accessed: 26 February 2024).

[2] State Of Orissa & Anr vs Mamata Mohanty on 9 February, 2011 (no date). Available at: https://indiankanoon.org/doc/1640744/ (Accessed: 26 February 2024).

[3] State Of Bihar and Ors vs Chandreshwar Pathak on 7 August, 2014 (no date). Available at: https://indiankanoon.org/doc/165098610/ (Accessed: 26 February 2024).

[4] Article 14 in Constitution of India (no date). Available at: https://indiankanoon.org/doc/367586/ (Accessed: 26 February 2024).

[5] Article 16 of the Indian Constitution (no date). Available at: https://samistilegal.in/article-16-of-indian-constitution/ (Accessed: 26 February 2024).

[6] Article 311 in Constitution of India (no date). Available at: https://indiankanoon.org/doc/47623/ (Accessed: 26 February 2024).

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