IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER [CASE NUMBER]. [ENTITY] Vs. The Advocate General, Government of [ENTITY]asthan, Jaipur. Date of Order 18th May, 20[SECTION]. PRESENT HON'BLE MR. JUSTICE [ENTITY] Mr. [ENTITY] for the petitioner. Mr. [ENTITY], AAG, for State- respondents. BY THE COURT
Aggrieved of the orders dated 22.12.2006 and 9.1.2007, the petitioner has instituted the present writ application praying for the following reliefs:-
It is therefore most respectfully prayed that this Hon'ble Court-
(i) Would be pleased to call for the record and after examining the same will be further pleased to quash and set aside the orders dated 21.12.2006 and 9.1.2007 to the extent of the directions contained therein to terminate the services of the petitioner with all consequential benefits.
(ii) By further appropriate direction, the respondents may be directed to continue the petitioner on the post upon which he is serving co-extensive with the post of Additional Advocate- General with all consequential benefits.
(iii) By further appropriate order/direction the respondents may be directed to provide appointment to the petitioner on regular basis as he has been discharging his duties for last more than 11 1/2 years without any mistake or shortcoming viz-a-viz the fact that persons junior to the petitioner have been provided appointment on regular basis with all consequential benefits.
Interim Relief
(iv) Subject to and till the decision of the annexed writ petition while staying the operation of the impugned orders dated 22.12.2006 and 9.1.2007 the respondents may be directed to continue the petitioner in service.
Common/Residue Reliefs
(v) Any other relief which this Hon'ble Court deems fit and proper may be granted.
(vi) Cost of the petition may be quantified in favour of the petitioner.
Briefly, the essential skeletal material facts necessary for appreciation of the controversy raised are that the petitioner was engaged as Lower Division Clerk (LDC) on fixed salary/remuneration of Rs. 2,000/- per month on contractual basis till the post is not filed by regular employee or till further orders vide order dated 7.6.1995 by the then Additional Advocate General, [ENTITY]asthan, Jaipur. It is pleaded case of the petitioner that the Hon'ble Governor while creating the post of Additional Advocate General and its supporting staff, including the post of LDC vide order dated 20.5.1995, did not contemplate the condition that the post of Senior P.A., LDC and [ENTITY] should be utilized by engaging persons on contract basis. However, such conditions were incorporated in the order dated 23rd May, 1995 (Annex.2) by the Law and Legal Affairs Department while issuing order in continuation of orders of even number dated 20.5.1995. The petitioner, since his appointment on 7th June 1995, has been discharging his duties to his best of abilities.
Learned counsel for the petitioner, Mr. [ENTITY], reiterating the pleaded facts and grounds of the writ application vehemently argued that the then Additional Advocate- General mooted a proposal requesting the respondent No. 2, to accord regular service/appointment to its supporting staff as would be evident from communication dated 30.8.1997, 27.1.1998, 4.8.1998 and 25.8.1998. According to the learned counsel, the then Advocate General also recommended to accord regular service/appointment to the persons serving as subordinate staff as would be evident from communication date 9.1.2001 (Annex. [SECTION]). But, to the contrary, the State-respondent directed the Advocate General and Additional Advocate-General to terminate the services of the petitioner, serving as a supporting staff, with a further direction to employ persons on contractual basis through some contractor. The recommendation for regularisation of services of the petitioner by the then Advocate General Shri [ENTITY] and other Additional Advocate-General, from time to time, were not acceded to; and to the contrary, impugned orders dated 22.12.2006 and 9.1.2007, have been issued in a revengeful manner to dispense with the services of the petitioner.
It is further urged that the contingency of abolition/ tempering or terminating the office of Additional Advocate General is not contemplated in either of the orders. The petitioner has put in 12 years of service without any break or complaint, therefore, the action of the respondents is contrary to the law declared by the Hon'ble Supreme Court in the case of State of Karnataka Vs. [ENTITY] and Ors.: (2006) 4 SCC 1.
Referring to the case of [ENTITY] (Sr.P.A.) who was appointed on 18.9.1995 and [ENTITY] who too entered service subsequent to the petitioner; it is contended that they have been accorded regular pay scale vide orders dated 24.3.2001 and 28.7.2000. Thus, the action is discriminatory as well; for the junior persons to the petitioner have been accorded the benefit of regularization ignoring the claim of the petitioner. The action has also been impeached for in violation of constitutional provisions and malafides exploiting the unemployed youth. To fortify his stand, reliance has been placed on the opinion in the case of [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; Vijay Kumar Jonwal Vs. Commissioner, Bureau of Investment Promotion [ENTITY]. & ors., S.B. Civil Writ Pet. No. 14649/2011 decided on [SECTION].11.2015; Mahesh Kumar Sharma Vs. The Advocate General, Govt. of [ENTITY]. & ors., SB Civil Writ Pet. No. 8976/2011 decided on 21.12.2011; Jagdish Prasad Yadav & ors. Vs. State of [ENTITY]. & ors., 20[SECTION] (1) WLC ([ENTITY].) UC 336; Ajeet Kumar Jain Vs. State of [ENTITY]. & ors., DB Special Appeal (W) No. 765/2013 and connected matters, decided on 10.4.2015; [PRECEDENT]; 2015 WLC ([ENTITY].) UC 119; [ENTITY] Vs. State of [ENTITY]. & ors., 2015 WLC ([ENTITY].) UC 531; [PRECEDENT] [PRECEDENT]; [ENTITY] & ors. Vs. [ENTITY]; [PRECEDENT]; [PRECEDENT] and [ENTITY] (Retd.) now [PRECEDENT].
In response to notice of the writ application, the respondent No.2 ([ENTITY]), has filed its counter-affidavit pleading that one post of Additional Advocate General was created at Jaipur Bench of the High Court and another at Principal Seat of the [ENTITY]asthan High Court, at Jodhpur, under approved expenditure including one post of Sr. P.A., LDC and [ENTITY]. The persons on the aforesaid posts were to be engaged by the incumbent Additional Advocate General on contract basis from open market so that they do not become permanent liability on the Government. The terms and conditions of such appointments were to be finalised/ advised by the Department of Personnel.
Mr. [ENTITY], learned Additional Advocate-General, reiterating the stand, on behalf of the State-respondent, in the counter-affidavit, asserted that considering the request of the Law Secretary on the proposal for creation of two posts of Additional Advocate General one at Jodhpur and another at Jaipur; a proposal was considered in the backdrop of the workload and litigation expected to be handled by the Advocate General and Additional Advocate General. Accordingly, the proposal was finalised for creation of post of Additional Advocate General with supporting staff (Sr. P.A., L.D.C. and [ENTITY]). The supporting staff was to be appointed by the incumbent Additional Advocate General from open market. The terms and conditions of such appointments were to be advised by the DOP.
It is further contended that in continuation of order dated 20.5.1995, the Government vide order dated 23.5.95, in no uncertain terms, clarified that the post of LDC was to be filled up from open market. According to learned Additional Advocate General, a glance of the appointment order dated 7.6.95 (Annex.3), leaves no room for any doubt that the appointment of the petitioner was purely on contract basis till the post is filled by a regular employee or till further orders. The order of appointment further contemplated that the employee shall not be treated as employee of the [ENTITY] in any manner whatsoever. Further-more, the employee was not entitled to any perquisites or allowance including bonus, periodical increments, DA, PF etc. The services could be terminated at any time without any notice.
Mr. [ENTITY], would further submit that the very appointment of the petitioner is dehors of any procedure as would be evident from the materials available on record. It is urged that in the year 2000 itself, the then Government Advocate/Additional Advocate General, were called upon to intimate and forward the terms and conditions of the contract, entered into for the fresh posting including that of LDC involved herein, as would be evident form communication dated 31.7.2000 (Annex.14). In response, the terms and conditions of the contract, forwarded by the then Additional Advocate General as reflected from the communication dated 8th August, 2000 (Annex.15); would make it apparent on the face of record that the petitioner was never engaged in accordance with the terms and conditions conveyed. For the State Government never intended to create any right in favour of the incumbents engaged by the Additional Advocate-General as Senior P.A., LDC and [ENTITY], as would be evident from the materials available on record. This conscious decision was taken by the State Government at the initial stage as would be evident from the relevant note-sheet No. 213 to 2[SECTION]; which have been specifically incorporated in the written statement filed on behalf of respondent No.2 ([ENTITY]).
Referring to the subsequent developments, the learned counsel asserted that since July, 2011, a policy decision has been taken to make appointment on contract basis by engagement of employees on contract basis in the office of Advocate General /Additional Advocate General/ Government Advocate/ Additional/ Deputy/Assistant Government Advocate as would be reflected from the office order dated 12.7.2011. Under the new system introduced, a fixed allowance is to be paid to the Advocate General/Additional Advocate General/ Government Advocate/Assistant Govt. Advocate etc. towards expenses incurred in engaging Stenographers, LDC and book lifters. Thus, thereafter the need for engagement of the petitioner or other similarly situated on contract basis in terms of the contract entered into for a fixed period extended from time to time, is no more required.
Repelling the allegations of discrimination, it is emphatically contended that the materials available on record would reveal that [ENTITY] and [ENTITY], have been accorded regularization on the post of Class-IV employee as would be evident from Annex.39 and 40.
Moreover, the appointing authority for the post of LDC, is the [ENTITY]asthan Public Service Commission, and therefore, the claim staked for regularization on the post of LDC, is absolutely misconceived and misplaced.
Referring to the order dated 27.2.2008 made on the writ application preferred by the petitioner earlier; the learned Additional Advocate-General raised preliminary objection as to the very maintainability of the writ application in view of principle of res judicata. In support of his stand, reliance has been placed on the opinion of the Hon'ble Supreme Court in the case of [PRECEDENT]; [ENTITY] Vs. Navodaya Vidyalaya Samiti and Ors., (1997) 2 SCC 534; Maharashtra State Road Transport Corporation and Anr. Vs. Casteribe [ENTITY]ya P. Karmchari Sanghatana: (2009) 8 SCC 556; [ENTITY] and Ors.Vs. [ENTITY] and Ors.: (2011) 2 SCC 429 and [ENTITY] Vs. State of [ENTITY]. & ors., [CASE NUMBER] and connected petitions, decided on 15.7.2013.
I have heard the learned counsel for the parties and perused the materials available on record as well as gave my thoughful consideration to the submissions at Bar so also opinions referred to and relied upon during the course of arguments.
Indisputably, the petitioner's engagement was made vide order dated 7.6.95 (Annex.3), which reads thus:-
OFFICE OF THE ADDITIONAL ADVOCATE GENERAL RAJASTHAN JAIPUR.
No. K.S.R./95 Dated 7th June, 1995 OFFICE ORDER
Pursuant to the order of the State Government by order No.F.12(3)[ENTITY]/Vad/86 dated 20.5.95 appointing me as Additional Advocate General [ENTITY]., Jaipur High Court Jaipur, the following is appointed on the post indicated against him on fixed remuneration on the contract basis from the date of joining on the terms and conditions indicated below:
1. [ENTITY] L.D.C. Rs.2000/-
S/O [ENTITY] p.m. fixed.
Village Hirawala Nayala (Rs. 2000) Road, the. Eassi, District Jaipur. Terms and Condition:
1. The appointment shall be on contract basis on a fixed amount the post is not filled by a regular employee or till further orders.
2. The aforesaid employee shall not be treated as employee of State of [ENTITY]. in any manner whatsoever.
3. The aforesaid employee will not be entitled to any perquisites or allowance including bonus periodical increment D.A. PF etc,.
4. The services of the said employee can be terminated at any time without any notice.
([ENTITY]) Addl. Advocate General, [ENTITY].
Copy forwarded to the following:
1. Shri [ENTITY].
2. Treasury Officers Govt. secretariat Jaipur.
Addl. Advocate General, [ENTITY].
The appointment order aforesaid, in no uncertain terms, stipulated specific conditions to the effect that the appointment was on contractual basis on a fixed amount till the post is not filled by a regular employee or till further orders. The petitioner was not to be treated as an employee of the [ENTITY] in any manner whatsoever. Further, he was not entitled to perquisites or allowance including fixed periodical increment, DA, PF etc., and his services could be terminated at any time without any notice. The engagement of the petitioner was extended from time to time.
From the materials available on record, it is also reflected that no procedure, worth the name, was followed while extending the contractual appointment to the petitioner vide order dated 7.6.95. The State-respondent while considering the creation of one post of Additional Advocate General at Jaipur Bench of the High Court approved the expenditure with a specific contemplation that the posts of Senior P.A., L.D.C. and [ENTITY], which were to be filled up by engagement by the incumbent Additional Advocate General, were to be engaged on contractual basis from open market so that they do not become the permanent liability on the Government.
These facts are clearly reflected from the note-sheets drawn while considering the creation of posts and conditions of approved expenditure as would be reflected from the note-sheets No. 213, 214, 215 and 2[SECTION], which have been incorporated in the written statement by the State-respondent which reads thus:-
213. Considering the request from Law Secretary regarding reconsideration of the proposal for creation of two posts of Additional Advocate General- on at Jodhpur and another Jaipur, we may, to begin with, consider the case of creation of one post of Additional Advocate General at Jaipur.
214. To enable FD to appreciate the requirement of two posts, detailed of the workload and litigation expected to be handled by Advocate General and Additional Advocate General may have to be gone into Law Department may kindly furnish the details.
215. In so far as the items of approved expenditure for one post of Additional Advocate General are concerned following may be approved:-
1.Additional Advocate General 1
2.Senior P.A. 1
3.L.D.C. 1
4.[ENTITY] 1
2[SECTION]. The post at Sr. Nos. 2,3 and 4 will be engaged by the incumbent Additional Advocate General on contract basis from open market so that they do not become the permanent liability on the Government. The terms and conditions of such appointments will be got advised from DOP.
The fact that the petitioner instituted [CASE NUMBER] and its disposal by a co-ordinate Bench of this Court vide order dated 27.2.2008, is also not in dispute. At this juncture, it will be relevant to consider the text of order dated 27.2.2008 as [CASE NUMBER], which reads thus:
[CASE NUMBER] [ENTITY] & Anr.
Versus The Advocate General, Government of [ENTITY]asthan, Jaipur & Anr. February 27,2008 HON'BLE MR. JUSTICE [ENTITY] Mr. [ENTITY], for the petitioner. Mr. [ENTITY], for the respondents.
The only prayer which can be considered in the writ petition is regarding non-payment of salary. In this behalf, learned counsel for the respondents Mr. [ENTITY] submitted that as per his information, salary has already been paid to the petitioner No. 1 and for petitioner No. 2, process for the same is going on.
Considering the aforesaid aspect, the petitioners are permitted to make appropriate representation to the concerned authority in connection with the payment of salary if any due. If any such representation is made, the concerned authority may decide the same as per record and in accordance with law within a period of two months from the date of receipt of the same from the petitioner and whatever may be the decision, the same may be communicated to the petitioner immediately. Except the same, no other relief can be granted to the petitioners in this petition. Learned counsel for the petitioner has also not pressed any other point.
Subject to what is stated above, this writ petition is disposed of. Stay petition also stands disposed of.
([ENTITY]
On a consideration of the entire matter, the co-ordinate Bench specifically took note of the fact that only prayer which could be considered in the writ application was with reference to non payment of salary. Furthermore, the learned counsel for the petitioner also did not press any other point. These facts are apparent on the face of record, from a glance of the order dated 27.2.2008. From the prayer clause of earlier writ proceedings ([CASE NUMBER]), it is also evident that the petitioner prayed for the relief of regularization in the cadre of LDC, from the date of his initial appointment while claiming release of due salary/ wages which were withheld from January, 2002. The prayer clause of [CASE NUMBER], reads thus:
(i)to call for the entire record of the case and after examining the same be pleased to direct the respondents to consider the candidature of the petitioner for regularization in the cadre of LDC from the date of their initial appointment and after their due fixation in the regular pay scale from the date of initial appointment, the arrears may be paid to them after due computation alongwith interest at the bank rate.
(ii) By further appropriate order or direction, the respondents may be directed to release their due salary/wages, which has been withheld from January 2002 and the same be paid as per the rates fixed by the State Government in accordance with revision, which has been taken place time to time and after due computation the same may be paid alongwith interest at the bank rate.
(iii) Any prejudicial order to the interests of the petitioner, if passed during the pendency of the writ petition, the same may kindly be taken on record and may be quashed and set aside.
(iv) Any other appropriate order or direction, which this Hon'ble Court may deems fit and proper in the facts and circumstances of the present case, may also be passed in favour of the petitioner.
(v) That the cost of writ petition may be awarded in favour of the petitioners.
The petitioner after having instituted the earlier writ application ([CASE NUMBER]), which was adjudicated upon by order dated 27.2.2008; did not agitate the matter any further. Thus, the order dated 27.2.2008, attained finality. Hence, the preliminary objection raised on behalf of State-respondents as to the maintainability of the present writ application on the same set of facts between the same parties and with the same relief; has some substance.
In the case of [ENTITY] (supra), the Hon'ble Apex Court of the land by an authoritative pronouncement, overruling the earlier opinions, has declared the law specifically observing that the High Court acting under [SECTION] of the [ACT], should not issue directions for absorption, regularisation or permanent continuation, unless the recruitment itself was made regular and in terms of the constitutional scheme. At this juncture, it will be relevant to consider the opinion as reflected from Para 43 and 53, which reads thus:
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our [ACT] and since the rule of law is the core of our [ACT], a Court would certainly be disabled from passing an order upholding a violation of [SECTION] or in ordering the overlooking of the need to comply with the requirements of [SECTION] read with [SECTION] of the [ACT]. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under [SECTION] of the [ACT], should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in [ENTITY] (supra), [ENTITY] (supra), and [ENTITY] (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 recruitments 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 sub judice, 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.
Various judgments referred to and relied upon by the learned counsel for the petitioner are in the backdrop of entirely different and distinguishable facts hence do not apply to the facts of the instant case at hand.
From the materials available on record, and the terms and conditions of the appointment of the petitioner on contract basis; it is more than clear that it was an appointment on purely contractual basis till the post is filled by regular appointment or till further orders, with further stipulation that the petitioner shall not be treated as an employee of the [ENTITY] in any manner whatsoever. But for fixed salary of Rs. 2,000/- per month, he was not entitled to any perquisites or allowance including bonus, periodical increments, DA, PF etc. The offer of contractual appointment also contemplated termination of the engagement at any time without any notice.
The recommendations made, time and again, by the then Advocate General/ Additional Advocate General was not acceded to by the State Government. Moreover, the Government Advocate/Additional Advocate-General, were called upon to furnish the terms of the contract entered into with the employees engaged on contract basis including the post of LDC as per the terms and conditions of the [ACT] (for short `Act of 1970'). Therefore, the claim of the petitioner for regularization cannot be sustained. The appointment of the petitioner by no stretch of imagination can be considered to be a regular appointment in view of the terms and conditions incorporated in the order of appointment dated 7.6.95 (Annex.3). Furthermore, no procedure whatsoever was followed while extending the offer of appointment in favour of petitioner. Thus, the appointment was clearly illegal.
A three Judges bench of the Hon'ble Supreme Court in the case of [PRECEDENT] decided on 12.2.2014, held thus:-
8. As [SECTION] is an integral part of our system, each and every state action is to be tested on the touchstone of equality. 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 in view of the judgments rendered by this Court in [PRECEDENT]. [PRECEDENT]; [PRECEDENT]. etc. [PRECEDENT]; [PRECEDENT]. [PRECEDENT]; [PRECEDENT]. [PRECEDENT]; [PRECEDENT] [PRECEDENT]; [PRECEDENT] and [PRECEDENT] MANU/SC/1037/2006 : (2006) 2 SCC 7[SECTION]; and [PRECEDENT]. [CASE NUMBER] : JT 2013 (9) SC 139.
9. In Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao and Ors. MANU/SC/0980/1996 : (1996) 6 SCC 2[SECTION], a larger Bench of this Court reconsidered its earlier judgment in [PRECEDENT], wherein it had been held that insistence of requisition through employment exchanges advances rather than restricts the rights guaranteed by [SECTION] and [SECTION] of the [ACT]. However, due to the possibility of non sponsoring of names by the employment exchange, this Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the [ACT] and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto, it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the [ACT]. The Court further observed:
In addition, the appropriate department should call for the names by publication in the newspapers having wider circulation and also display on their office notice and employment news bulletins; and then consider the case of all candidates who have applied. If this procedure is adopted, fair play would be sub served. The equality of opportunity in the matter of employment would be available to all eligible candidates.
(Emphasis added) (See also: [PRECEDENT]. [PRECEDENT]; and [PRECEDENT].
10. In [PRECEDENT], this Court upheld the judgment of the Punjab and Haryana High Court wherein [SECTION]00 appointments made in the Police Department without advertisement stood quashed though the [ACT] did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.
11. In Union Public Service Commission v. Girish Jayanti Lal Vaghela and Ors. MANU/SC/8003/2006 : AIR 2006 SC 1[SECTION]5, this Court held:
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 or 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]
(Emphasis added)
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in [PRECEDENT]. [CASE NUMBER] as under:
(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] and [SECTION] of the [ACT].
(2) Regularisation 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 regularisation.
(4) Those who come by back-door should go through that door.
(5) No regularisation 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 is 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.
13. A similar view has been reiterated by the [ACT] Bench of this Court in [PRECEDENT], observing that any appointment made in violation of the Statutory Rules as also in violation of [SECTION] and [SECTION] of the [ACT] would be a nullity. "Adherence to [SECTION] and [SECTION] of the [ACT] is a must in the process of public employment". The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
14. In [PRECEDENT], this Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. The Court held as under:
Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of [SECTION] and [SECTION] of the [ACT]. Such a course violates the mandates of [SECTION] and [SECTION] of the [ACT] as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in [SECTION] requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit.
15. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The [PRECEDENT]; [PRECEDENT]. [PRECEDENT]; [PRECEDENT]. MANU/SC/[SECTION]59/2001 : AIR 2001 SC 3435; The [PRECEDENT]. [PRECEDENT]; [PRECEDENT]; [PRECEDENT]. [PRECEDENT]; and [PRECEDENT]. [CASE NUMBER] : (2014) 1 SCC [SECTION]1).
[SECTION]. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.
17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of [SECTION] and [SECTION] of the [ACT]. What has been deprecated by this Court time and again is "backdoor appointments or appointment de hors the rules".
In State of U.P. and Ors. v. U.P. State Law Officers Association and Ors. MANU/SC/1583/1994 : AIR 1994 SC [SECTION]54, this Court while dealing with the back-door entries in public appointment observed as under:
The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on the considerations other than merit. In the absence of guidelines, the appointment may be made purely on personal or political consideration and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back-door have to go by the same door From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.
(Emphasis added)
18. In Som [ENTITY] and Ors. v. State of Haryana and Ors. MANU/[PRECEDENT], this Court held as under:
The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. The rules provide the guidance for exercise of the discretion in making appointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection. The appointing authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.
In the case of [ENTITY] (supra), a Co-ordinate Bench of this Court while taking note of the new system introduced, as a policy decision, vide office order dated 12.7.2001, declined interference while considering the assailment of the order dated 18.11.2010 by which the services of the employees who were engaged on contract basis on the post of LDC, Stenographer and book-lifter in the office of Advocate-General, Additional Advocate-General; were sought to be terminated. According to the new system as reflected from order dated 12.7.2011, a fixed allowance is to be paid to the Advocate General and Additional Government Advocate, Government Advocate/Additional/Deputy Government Advocate etc. towards expenses incurred for the Stenographers, LDC and book lifters.
At this juncture, it will be relevant to consider the text of order dated 12.7.2011, which reads thus:
( ) :- ?0 12(09) / /07- -6 12.07.2011
, , , / , / / / , / / / , / (Clerical Fixed Allowance) :-
-3 ( )
?0 0 5000/-
3500/-
. 12,000/-
5000/-
3500/-
2500/-
. 11,000/-
/ / / /
3500/-
2500/-
. 6000/-
/ / , /
3500/-
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. 6000/-
( -5) . . 101102055/ . ./?-5/ 07.07.2011
:- -1 0 0 "
In view of the new system introduced, as a policy decision, the batch of writ applications, lead case being that of [ENTITY] (supra), were dismissed for having become infructuous. Another co-ordinate Bench of this Court in the case of [ENTITY] (supra), did not find any illegality in the change in system introduced, as aforesaid, as a policy decision.
In the case of Supreme Court Employees' Welfare Association (supra), explaining the scope of doctrine of res-judicata, the Hon'ble Supreme Court held thus:
28. The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the Parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of [SECTION] of the [ACT]. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the [ACT]. There is no question of overruling the provision of [SECTION] as contended by the learned Attorney General. The judgment which is binding between the parties and which operates as res judicata between them, cannot be said to overrule the provision of [SECTION] of the [ACT] even though it may be, to some extent, violative of [SECTION] of the [ACT]. So far as the Supreme Court employees are concerned in these proceedings the only enquiry to be made is whether the judgments of the Delhi High Court relating to the L.D.Cs. and the Class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of India.
Similarly, in the case of [ENTITY] (supra), while considering the scope of second writ application in assailing the order of termination, upheld the view of the High Court as to the very maintainability of the petition on the principle of res judicata, observing thus:
13. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to indifference on the part of all in rural India except some educated people. Education to the girl children is nation's asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middle class people are sending the girl children to co-educational institutions under the care of proper management and to look after the welfare and safety of the girls. Therefore, greater responsibility is thrust on the management of the schools and colleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher who has been kept in charge, bears more added higher responsibility and should be more exemplary. His/her character and conduct should be more like [ENTITY] and as loco parentis and such is the duty, responsibility and charge expected of a teacher. The question arises: whether the conduct of the appellant is befitting with such higher responsibilities and as he by his conduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the appellant is a tip of the ice berg in the discipline of teaching, a noble and learned profession; it is for each teacher and collectively their body to stem the root to sustain the faith of the society reposed in them. Enquiry is not a panacea but a nail on the coffin. It is self-inspection and correction that is supreme. It is seen that the rules wisely devised have given the power to the Director, a highest authority in the management of the institution to take decision, based on the fact situation, whether a summary enquiry was necessary or he can dispense with the services of the appellant by giving pay in lieu of notice. Two safeguards have been provided, namely, he should record reasons for his decision not to conduct an enquiry under the rules and also post with facts the information with Minister, Human Resources Department, Government of India in that behalf. It is seen from the record that the appellant was given a warning of his sexual advances towards a girl student but he did not correct himself and mend his conduct. He went to the girl hostel at 10 p.m. in the night and asked the Hostel helper, [ENTITY] to misguide the girl by telling her that Bio-Chemistry Madam was calling her; believing the statement, she came out of the hostel. It is the admitted position that she was an active participant in cultural activities. Taking advantage thereof, he misused his position and made sexual advances towards her. When she ran away from his presence, he persued her to the room where she locked herself inside; he banged the door. When he was informed by her room mates that she was asleep, he rebuked them and took the torch from the room and went away. He admitted his going there and admitted his meeting with the girl but he had given a false explanation which was not found acceptable to an Inquiry Officer, namely, Asstt. Director. After conducting the enquiry, he submitted the report to the Director and the Director examined the report and found him to be not worthy to be a teacher in the institution. Under those circumstances, the question arises: whether the girl and her room-mates should be exposed to the cross-examination and harassment and further publicity? In our considered view, the Director has correctly taken the decision not to conduct any enquiry exposing the students and modesty of the girl and to terminate the services of the appellant by giving one month's salary and allowances in lieu of notice as he is a temporary employee under probation. In the circumstances, it is very hazardous to expose the young girls for tardy process of cross- examination. Their statements were supplied to the appellant and he was given an opportunity to controvert the correctness thereof. In view of his admission that he went to the room in the night, though he shifted that timings from 10 p.m. to 8 p.m. which was found not acceptable to the respondents and that he took the torch from the room, do indicate that he went to the room. The misguiding statement sent through [ENTITY], the hostel peon, was corroborated by the statements of the students; but for the misstatement, obviously the girl would not have gone out from the room. Under those circumstances, the conduct of the appellant is unbecoming of a teacher much less a loco parentis and, therefore, dispensing with regular enquiry under the rules and denial of cross-examination are legal and not vitiated by violation of the principles of natural justice.
Thus, the petitioner after having agitated the issue of regularization which was adjudicated upon by a Co-ordinate Bench of this Court vide order dated 27.2.2008 in [CASE NUMBER]; is not entitled to re-agitating the matter afresh by institution of the instant second writ application.
In the case of [ENTITY] (supra), the Hon'ble Apex Court of the land while considering the claim of the writ petitioner ([ENTITY]) for regularization and parity in pay at par with corresponding post holders in service, held that such a claim could not be maintained, holding thus:
19. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:
(i) High Courts, in exercising power under [SECTION] of the [ACT] will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in [SECTION] and [SECTION] should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
In the case of Maharashtra State Road Transport Corporation and Anr. Vs. Casteribe [ENTITY]ya P. Karmchari Sanghatana (supra), reiterating the view in the case of [PRECEDENT]; the Hon'ble Supreme Court held that the courts cannot direct creation of posts. It will be relevant to consider the text of Para 37 and 41 of the judgment which reads, as under:
37. There cannot be any quarrel to the proposition that courts cannot direct creation of posts. In [PRECEDENT] this Court held:
12. Mrs [ENTITY], in support of [CASE NUMBER] [arising out of [CASE NUMBER] and [CASE NUMBER]] submitted that the workmen were entitled to be made permanent. She however fairly conceded that there were no sanctioned posts available to absorb all the workmen. In view of the law laid down by this Court the status of permanency cannot be granted when there are no posts. She however submitted that this Court should direct the Universities and the State Governments to frame a scheme by which, over a course of time, posts are created and the workmen employed on permanent basis. It was however fairly pointed out to the Court that many of these workmen have died and that the Universities have by now retrenched most of these workmen. In this view of the matter no useful purpose would be served in undergoing any such exercise.
13. To be seen that, in the impugned judgment, the High Court notes that, as per the law laid down by this Court, status of permanency could not be granted. In spite of this the High Court indirectly does what it could not do directly. The High Court, without granting the status of permanency, grants wages and other benefits applicable to permanent employees on the specious reasoning that inaction on the part of the Government in not creating posts amounted to unfair labour practice under [SECTION] of the [ACT]. In so doing the High Court erroneously ignores the fact that approximately 2000 workmen had not even made a claim for permanency before it. Their claim for permanency had been rejected by the award dated 20-2- 1985. These workmen were only seeking quantification of amounts as per this award. The challenge, before the High Court, was only to the quantification of the amounts. Yet by this sweeping order the High Court grants, even to these workmen, the wages and benefits payable to other permanent workmen.
14. Further, [SECTION] of the [ACT] reads as follows:
6. To employ employees as `badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent employees.
The complaint was against the Universities. The High Court notes that as there were no posts the employees could not be made permanent. Once it comes to the conclusion that for lack of posts the employees could not be made permanent, how could it then go on to hold that they were continued as "badlis", casuals or temporaries with the object of depriving them of the status and privileges of permanent employees? To be noted that the complaint was not against the State Government. The complaint was against the Universities. The inaction on the part of the State Government to create posts would not mean that an unfair labour practice had been committed by the Universities. The reasoning given by the High Court to conclude that the case was squarely covered by [SECTION] of the [ACT] cannot be sustained at all and the impugned judgment has to be and is set aside. It is however clarified that the High Court was right in concluding that, as per the law laid down by this Court, status of permanency could not be granted. Thus all orders wherein permanency has been granted (except award dated 1-4-1985 in [CASE NUMBER]) also stand set aside.
41. There is no doubt that creation of posts is not within the domain of judicial functions which obviously pertains to the executive. It is also true that the status of permanency cannot be granted by the Court where no such posts exist and that executive functions and powers with regard to the creation of posts cannot be arrogated by the Courts.
In the case of Bhupendra Nath Hazarika and Anr. Vs. State of Assam and Ors.: (2013) 2 SCC 5[SECTION], on a survey of earlier opinions in the case of [PRECEDENT] & [PRECEDENT]; their Lordships held in unequivocal terms that an equitable ground does not clothe an appointment with a legal status.
Thus, by now it is well settled that in an appointment made in violation of recruitment rules, the same cannot be treated to be regular. From the materials on record, it is evident that the appointment to the post of LDC, involved herein, was to be made on contractual basis from open market. There was no advertisement made inviting application from eligible candidates for consideration of their candidature for appointment on contractual basis. The appointment of the petitioner was dehors the procedure much less a back door entry. Whether any active part is played by the petitioner or not has nothing to do with the appointment which was made contrary to the directions made by the State Government to appoint LDC on contract basis from open market in accordance with the provisions of Act of 1970.
In the case of [PRECEDENT], the Hon'ble Apex Court of the land observed that the one appointed with clear stipulation that such appointment will not confer any right of regularization and absorption in regular cadre; has no right to stack claim for regularization or absorption.
For the reasons and discussions hereinabove, the writ application lacks in merit and therefore, deserves to be dismissed.
Ordered accordingly.
In view of the final adjudication of the writ application, the stay application stands closed and the interim order dated 21.3.2007 stands vacated.
However, in the facts and circumstances of the case, there shall be no order as to costs.
([ENTITY]), J.
Item No.132 bm gandhi/