HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 32 Case :- SPECIAL APPEAL No. - 365 of 2013 Appellant :- [ENTITY] Respondent :- [ENTITY] And Others Counsel for Appellant :- [ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY] Hon'ble [ENTITY],J.
Hon'ble [ENTITY],J.
( Delivered by Hon'ble [ENTITY], J.)
1. Heard learned Senior Advocate, Sri [ENTITY], assisted by learned counsel for the appellant as well as learned Standing Counsel for [ENTITY] and perused the material available on record.
2. This intra court appeal has been filed under [SECTION] of Allahabad High Court, 1952 (in short '1952') against Judgment dated 18.02.2013 of learned Single Judge passed in [CASE NUMBER] ([ENTITY] Vs. [ENTITY] And others.) whereby writ petition filed by petitioner-appellant has been dismissed.
3. According to the appellant, he was appointed as Additional Clerk in the Vadik Inter College, Somai, District Jalaun, which is a recognized and Government aided intermediate Institution. Salary of its teachers and other employees are paid under the provisions of [ACT]. The appellant was appointed with permission of District Inspector of Schools vide order dated 26.07.1987 on account of increased strength of students in the year 1987. After his appointment, the appellant was continuously working on the above post and getting salary. All of sudden vide order dated 4.12.2012, District Inspector of Schools, Jalaun issued a show cause notice to the petitioner-appellant in regard to the alleged disputed status of his employment and vide order dated 17.01.2013 salary of appellant has been stopped by District Inspector of Schools, Jalaun, on the ground of non availability of sanctioned post in the institution, at the time of appointment of the appellant.
4. Against the said order, [CASE NUMBER] was preferred and the same was dismissed vide judgment and order dated 18.02.2013 with the following observations:
"Having heard learned counsel for the parties, it is correct that the action has been taken after 26 years but that action, in my opinion, was necessary in order to remove the perpetuation of an illegality and not a merely irregularity. Salary from State funds has to be paid against the sanctioned post. The petitioner was admittedly not appointed against any sanctioned post, as is required for [SECTION] of [ACT]. The petitioner was, therefore, appointed against a non-existent post and, as such, he was not entitled to payment of salary nor does he have any right to claim continuance on such a non-existent post. The question of necessity of sanction of post has already been dealt with by this Court in the case of [PRECEDENT].
This, therefore, does not violate [SECTION] at all and the argument advanced does not advanced the cause of the petitioner any further.
The question of the post falling within the norms is entirely different inasmuch unless the post is sanctioned, as explained herein above, merely because it is within the norms would not entitled the petitioner to claim continuance or salary as a mater of right. Even otherwise if the petitioner is working within the sanctioned strength as on date, the same would not validate a patently illegal continuance on the post in question.
None of the pleas raised has any force. The writ petition lacks merit, accordingly, the same is dismissed."
5. Learned counsel for the appellant submitted that petitioner- appellant was granted appointment with permission accorded by District Inspector of Schools, Jalaun, in the institution on account of the existing strength in the institution during the academic sessions 1985-86 and 1986-87. The petitioner-appellant was selected and appointed vide order 11.09.87 after obtaining requisite approval from the District Inspector of Schools, Jalaun. It is further submitted that petitioner-appellant had continuously worked and paid salary regularly till passing of the order dated 17.1.2013, wherein it has been held that he is not entitled to receive salary from State exchequer, but on the date of passing of the order impugned, appointment of the petitioner-appellant was within the sanctioned strength of 3 clerical posts, as [ENTITY], an Assistant Clerk working within the sanctioned strength of 3 posts had expired on 29.6.2010. Therefore, appointment of the appellant could not be termed beyond the sanctioned post.
6. The judgment impugned in this appeal is assailed on the grounds that finding recorded by learned Single Judge while dismissing writ petition is against the view taken in the judgment of Secretary, State of Karnataka Vs. [ENTITY] reported in 2006 (4) SCC 1; that writ Court has also failed to take into account that at the time of initial appointment of petitioner-appellant, all the procedure provided under the law was followed; that petitioner-appellant was subjected to interview by a duly constituted Selection Committee as they were sponsored by the employment Exchange; that learned Single Judge has failed to appreciate that similarly situated employee, who was appointed along with petitioner-appellant has already been absorbed in Leprosy Department. The impugned order is also assailed on ground that the writ Court has failed to take into account that the petitioners-appellants have already put in more than 10 years service in the department concerned.
7. Per contra, learned Standing Counsel, appearing for the State submits that at the time of appointment of petitioner-appellant, there were three sanctioned posts of Clerks (one Head Clerk and two Assistant Clerks) and one Head Clerk, namely, Shri [ENTITY] and two Assistant Clerks, namely, [ENTITY] and [ENTITY] were already working on that posts, as such there is no vacant sanctioned post in the college and appointment of petitioner is against the provisions of law without any sanctioned post and without adopting procedure prescribed, as such same is void ab initio. It is further submitted that though in the year 1987 total number of students of the college were 788. As per the provisions of [CASE NUMBER] dated 20.11.1976 there was no sanctioned vacant post and at present the number of the students of the college is 547 and till date no Government Order or Rules for absorption has been issued qua the persons like petitioner/appellant. The State-respondents appear to be justified in recording that in view of judgment of Hon'ble Supreme Court in the case of [ENTITY] (Supra), process of appointment to Government service must be transparent and in accordance with the rules applicable and in conformity with [SECTION] and [SECTION] of the [ACT]. Hence approval granted was illegal and therefore, appellant is not entitled for the salary from the State-Exchequer.
8. Before coming to the merits of the appeal, it would be appropriate to consider legal principles laid down in several decisions of the Apex Court as well High Courts.
9. The Hon'ble Apex Court in paragraph No.10 of the judgment rendered in the case of Union Public Service Commission V. Girishh Jayanti Lal Vaghela and others, AIR 2006 SC 1[SECTION]5 held as follows:
"10. the appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination of interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under [SECTION] of the [ACT]. (See [PRECEDENT]).
10. The Apex Court in paragraph Nos.38, 42, 43, 44 and 47 of the judgment rendered in the Case of [PRECEDENT] (supra) held as follows:
"38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post
42. The argument that the right to life protected by [SECTION] of the [ACT] would include the right to employment cannot also be accepted at this juncture. The law is dynamic and our [ACT] is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under [SECTION] of the [ACT] is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the [ACT]. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under [SECTION] of the [ACT] and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on [SECTION] of the [ACT].
43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the [ACT] Bench of this Court in [PRECEDENT]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in [PRECEDENT] (supra), [PRECEDENT] (supra), and [PRECEDENT] (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitment are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post."
11. Paragraph No.20 of the judgment rendered in the case of [PRECEDENT], principles were laid down for appointment in public appointment thus:
"20) It is clear that in the matter of public appointments, the following principles are to be followed:
1) The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of [SECTION] & [SECTION] of the [ACT].
2) Regularization cannot be a mode of appointment.
3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
4) Those who come by back door should go through that door.
5) No regularization is permissible in exercise of the statutory power conferred under [SECTION] of the [ACT] if the appointments have been made in contravention of the statutory Rules.
6) The Court should not exercise its jurisdiction on misplaced sympathy.
7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
12. The Hon'ble Apex Court in paragraph Nos.5 and 8 of the judgment rendered in [CASE NUMBER] (arising out of [CASE NUMBER]) [PRECEDENT] decided on 12.02.2014 held that powers of which may be exercised in an arbitrary manner. The relevant extract of say thus:
"5. The exercise of powers by an authority cannot be unguided or unbridled as the [ACT] prescribes the limitations for each and every authority and therefore, no one, howsoever high he may be, has a right to exercise the power beyond the purpose for which the same has been conferred on him. Thus, the powers have to be exercised within the framework of the [ACT] and Legislative provisions, otherwise it would be an exercise of power in violation of the basic features of the [ACT] i.e. [SECTION] dealing with the fundamental rights which also prescribes the limitations.
8. any appointment made in violation of mandate of [SECTION] and [SECTION] of the [ACT] is not only irregular but also illegal and cannot be sustained. "
13. A Division Bench of this Court, in which one of us (Hon'ble [ENTITY], J.) was a member, in [CASE NUMBER] [PRECEDENT] thru R.G. & others held that "Since as already settled all such appointments made otherwise than by way of regular selection, do no confer any perennial right of continuance on sanctioned posts and the principle of last come first go is applicable, the consequence of this judgment shall accordingly follow."
14. In view of the admitted fact that on the date of initial appointment no vacant post for appointment of petitioner-appellant was available, approval or permission of the D.I.O.S, will not be considered as creation or sanction of the post. Apart from this, post was not advertised immediately as due procedure for recruitment has not been approved. No regularization scheme has been floated by the Government for absorption of the petitioner-appellant like persons, therefore availability of subsequent vacancy will not make any change in the situation. Apart from this appointment of petitioner-appellant is also not in consonance of the aforesaid legal position.
15. In the judgment impugned learned Single Judge has recorded a clear finding that the petitioner was appointed against a non-existent post and, as such, he was neither entitled for payment of salary nor he has any right to claim continuance on such a non-existent post. In reaching the above conclusion, he has rightly relied a full Bench decision rendered by this Court in the case of [PRECEDENT].
[SECTION]. Perusal of judgment impugned reveals that all the arguments raised on behalf of petitioner-appellant were discussed in detail and proper conclusions have been drawn.
17. For all aforesaid reasons, we find no infirmity or illegality in the judgment impugned. Special appeal lacks merit and is liable to the dismissed.
18. This special appeal is accordingly dismissed
19. There is no order as to costs.
Dated:07.01.20[SECTION] Pr/-