IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.2270/2008 Reserved on:16.4.2008 Decided on:14.5.2009 Sharmila Devi Sharma. …Petitioner. Versus Dr. Y.S. Parmar University and another. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes For the petitioner : Mr. V.D. Khidtta, Advocate. For the Respondents : Mr. Onkar Jairath, Advocate for respondent No.1. Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Vikas Rathore, Deputy Advocate General for respondent No.2. Rajiv Sharma, J. Brief facts necessary for the adjudication of this petition are that the petitioner had submitted an application for the post of Assistant Librarian in the University on 30.10.1996. It appears that she had also made representation to the-then Chief Minister on 18.11.1996 regarding employment assistance on daily wage basis as Library Assistant in the respondent-University. The Chief Minister approved that the applicant may be appointed as Library Assistant on daily wage basis, as requested. Consequently, the Vice Chancellor of respondent-University was 1 Whether the reporters of Local Papers may be allowed to see the judgment? ys. 2 requested to take further necessary action accordingly under intimation to OSD-cum-Principal Secretary to the Chief Minister. This U.O. is dated 28.12.1996. The Registrar of the respondent-university sent appointment letter to the petitioner on 6.1.1998. She joined her duties as daily paid Library Assistant on 7.1.1998. The respondent-university had issued general seniority list of Daily Paid Skilled Workers (Clerks, Drivers, Herbarium Assistant and Library Assistant) on 26.7.2008. The name of the petitioner figures at Sr. No. 1 in the seniority list of Library Assistant. The State Government had accorded approval to the respondent-university to regularize daily paid/contingent paid workers fourteen in numbers on 9.9.2008. The Assistant Registrar sent a communication to the Librarian on 22.9.2008 to supply him particulars of the petitioner for regularization. The petitioner submitted the necessary certificates/testimonials to the Librarian on 25.9.2008. She was not called for the interview. She approached this Court by way of present writ petition. The Court had directed the respondent-university on 11.11.2008 to interview the petitioner for regularization, however, her result was directed to be placed before the Court in a sealed cover on the next date. Mr. V.D. Khidtta, Advocate has strenuously argued that the petitioner had completed eight years as daily paid Library Assistant and was liable to be regularized by the respondent-university. He has further contended that his client is fully eligible as per the norms prescribed for regularization and the respondent-university cannot find fault with her initial appointment as daily paid Library Assistant on 6.1.1998. Mr. Onkar Jairath, Advocate has vehemently argued that the appointment of the petitioner as Library Assistant on daily paid basis is on the basis of the recommendations made by the-then Chief Minister. He then contended that the petitioner cannot be regularized since her initial 3 appointment was illegal and the matter is being looked into by the Police Department on the basis of FIR No. 1/2006. I have heard the learned counsel for the parties and perused the record carefully. The appointment to various posts in the University is regulated by the University Statute framed under “The Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986”. There is a detailed procedure the manner in which the direct recruitment has to take place. The posts are required to be advertised by the Vice Chancellor and thereafter the applications are required to be placed before the Screening Committee appointed for the purpose by the Vice Chancellor. The Screening Committee after scrutinizing the qualifications of the candidates is required to prepare list of candidates to be called for the interview and place the same before the Vice Chancellor. The Selection Committee after conducting tests/examinations is required to place the recommendations before the Appointing Authority. The petitioner had only submitted an application, as noticed above, on 30.10.1996 seeking appointment as Library Assistant in the respondent-university. She had also made representation to the then Chief Minister. He approved the appointment of the petitioner vide Annexure R-2. The Vice Chancellor was directed to do the needful. Consequently, the appointment letter was issued to the petitioner on 6.1.1998. She joined her duties on 7.1.1998. The manner in which the petitioner has been appointed is dehors the Himachal Pradesh Universities of Agriculture, Horticulture and Forestry Act, 1986 and the Statute framed thereunder. The post in question was never advertised. She was the sole candidate who applied and was appointed. The procedure adopted by the university to appoint the petitioner was arbitrary. 4 Every citizen has a right to be considered for appointment as per the procedure established under law. The functionaries of the university were remiss in discharge of their statutory duties when only on the basis of the approval made by the Chief Minister, the petitioner was offered appointment. It was necessary for the university to get the post advertised and thereafter to call for the applications in accordance with the Statute and then to fill up the post. The public employment cannot be treated as largesse to be distributed at the absolute discretion of the functionaries of the university. Mr. V.D. Khidtta has relied upon Annexures P-9 and P-10 to substantiate that the Vice Chancellor was the competent authority to appoint the petitioner. It is no doubt true that the Vice Chancellor has the power to appoint the persons mentioned in Annexures P-9 and P-10, however, he has to follow the norms prescribed under the law. He could not appoint a single candidate that too on the basis of approval accorded by the Chief Minister. Mr. V.D. Khidtta has strenuously argued that the petitioner had completed eight years on daily wage basis and his client was entitled to be regularized as Library Assistant. He has assailed the decision of the university not to call the petitioner for interview. Mr. Onkar Jairath has argued that since the appointment of the petitioner on daily wage basis was dehors the rules, she is not entitled to be regularized. He also contended that the State had imposed ban on engaging daily wagers on 11.7.1995 and 11.12.1997. He also argued that the necessary codal formalities as laid down under statute 5.7(1) (3) of the University Statute and Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 have also not been followed by the university. According to him, the appointment of the petitioner was for six months as per Annexure P-1. 5 The petitioner undoubtedly had completed eight years of service as per the pleadings of the parties. However, she cannot seek regularization in case her initial appointment is bad in the eyes of law. She has been appointed in negation of the principle of rule of law. The university, as per the reply filed, has not followed the procedure prescribed under the Statute. The post was never advertised nor was any requisition sent to the Employment Exchanges throughout the State of Himachal Pradesh. The similarly situate persons have been left out by the university at the time of engagement of the petitioner in the year 1996. The Superintendent of Police had sought certain information from the Registrar of the respondent-university on 28.2.2007. The University has supplied the information to him on 12.4.2007. It has been admitted by the university that the appointment of the petitioner as per Annexure R-4 was on the basis of U.O. note. The State has also registered an FIR No. 1/2006 to determine whether the appointment of the petitioner was in accordance with law or not. This Court will not embark upon this inquiry at this stage since the matter is under active investigation of the police. However, the fact of the matter is that the appointment of the petitioner on 6.1.1998 was against the law. She cannot seek regularization against the post of Library Assistant. The action of the respondent-university not to issue interview letter to the petitioner as per pleadings is justified. The Constitutional Bench in Secretary, State of Karnataka and others versus Umadevi (3) and others, (2006) 4 SCC 1 has laid down that the persons appointed on temporary/contractual/casual/ad hoc or daily wage basis have no legal right to regular or permanent public employment. Their Lordships have further held that absorption, regularization or permanent continuance of temporary, contractual, casual, daily wage or ad hoc employees appointed/recruited and continued for 6 long in public employment dehors the constitutional scheme of public employment amounts to another mode of recruitment in public employment which is not permissible. Their Lordships have further held that the persons who get employed, without following a regular procedure or even through the backdoor or on daily wages and have continued to work for ten years or more, they would not be entitled for regular or permanent employment. Their Lordships have held as under: “4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by- passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide 7 powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. 33. It is not necessary to notice all the decisions of this Court on this aspect. By and large what emerges is that regular recruitment should be insisted upon, only in a contingency an ad hoc appointment can be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment. 39. There have been decisions which have taken the cue from the Dharwad (supra) case and given directions for regularization, absorption or making permanent, employees engaged or appointed without 8 following the due process or the rules for appointment. The philosophy behind this approach is seen set out in the recent decision in The Workmen of Bhurkunda Colliery of M/s Central Coalfields Ltd. Vs. The Management of Bhurkunda Colliery of M/s Central Coalfields Ltd. (JT 2006 (2) SC 1), though the legality or validity of such an approach has not been independently examined. But on a survey of authorities, the predominant view is seen to be that such appointments did not confer any right on the appointees and that the Court cannot direct their absorption or regularization or re-engagement or making them permanent. 43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. 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 9 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 Article 226 of the Constitution of India, 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. 45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual 10 in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The 11 argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India. 49. It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. 54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held 12 herein, will stand denuded of their status as precedents.” Their Lordships of the Hon’ble Supreme Court have further held in Secretary, State of Karnataka and others versus Umadevi (3) and others (supra) that the persons, whose appointments are irregular, may be regularized, if they have put in ten years, however, distinction has been drawn in irregular and illegal appointment. Their Lordships have held as under: “3. A sovereign government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages. Going by a law newly enacted, The National Rural Employment Guarantee Act, 2005, the object is to give employment to at least one member of a family for hundred days in an year, on paying wages as fixed under that Act. But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule. 11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come 13 within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein. 12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a court say that the Union or the 14 State Governments do not have the right to engage persons in various