The Supreme Court has observed that when the appointment to public posts is found illegal, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise.
The bench comprising of Justice L. Nageswara Rao and Justice Hemant Gupta observed thus while rejecting a submission made by employees that they have been working for many years, some for more than 25 years, and therefore, humanitarian view should be taken to set aside the order of termination and regularise their services so as to make them entitled to pension and other retirement benefits. The case pertains to illegal appointment made against Class III or Class IV posts in the Health Department in Government of Bihar.
Referring to a full bench judgment of Patna High Court, the bench, in State of Bihar vs. Devendra Sharma, said:
Right to salary stricto sensu springs from a legal right to validly hold the post for which salary is claimed. It is a right consequential to a valid appointment to such post. Therefore, where the very root is non-existent, there cannot subsist a branch thereof in the shape of a claim to salary. The rights to salary, pension and other service benefits are entirely statutory in nature in public service. Therefore, these rights, including the right to salary, 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.
The court also said that in the instant case, 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, it added.
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