WA 181/2005 BEFORE THE HON’BLE THE CHIEF JUSTICE MR. J CHELAMESWAR HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER B.K. SHARMA, J 1. The appellants who were the respondents in the writ petition (W.P. (C) No. 1669/2000) being aggrieved by the judgment and order passed therein, have pr eferred this appeal. 2. The writ petition was filed by the present respondents challenging the a ppointments of the appellants as Complier/Lower Division Assistant in the office of the Directorate of Health Services, Assam. They were so appointed by orders dated 06.12.99. Further prayer made in the writ petition was to complete the sel ection process which was initiated vide employment notice dated 20.10.97. 3. The writ petitioners had responded to the employment notice dated 26.1 0.97 which was published by the official respondents inviting applications for t he posts of Compiler/ Lower Division Assistant. The selection was to be made as per the provisions of the Assam Directorate Establishment (Ministerial) Service Rules, 1973. Although the employment notice was issued and the applications were received, but no selection was held. 4. In the first part of November, 1999 the then Director of Health Services , Assam (Mr. B.C. Kora) went on leave upto January, 2000 for the treatment of hi s daughter outside the State and one Dr. J.K. Das, Addl. Director of Health Serv ices took over chare of Director of Health Services. However, subsequently such charge was given to one Dr. S.N. Thakuria, respondent No. 4 in the writ petition . Such charge was given by order dated 09.12.99. The said Director In-Charge sur reptitiously appointed the respondents No. 5 to 19 as Complier/ Lower Division A ssistant without holding any selection. In the writ petition, it was averred tha t such appointed was made even without any clearance from the State Level Empowe red Committee clearance of which was mandatory at that point of time for any app ointment. Be it stated here that such committee was comprised of by the Chief Se cretary, Addl. Chief Secretary and Commissioner and Secretary of Finance and Pla nning Development Department and Secretary of Personnel Department. 5. It is on the aforesaid background the writ petition was filed making a c hallenge to the appointments of the appellants with a further prayer for complet ing the process of section which was initiated by the aforesaid employment notic e. 6. It appears that neither the official respondents nor the private respond ents who are appellants herein filed any affidavit in opposition. The writ petit ion was disposed of by judgment and order dated 12.08.02 upon hearing the learne d counsel for the parties. The private respondents who are the appellants herein could not make out any case to justify that they had been appointed in accorda nce with the provision of law. This aspect of the matter finds mention in the im pugned judgment and order. Accordingly it was provided that the official respond ents would take a final decision in respect of the employment notice and thereaf ter to go for appointment after selection only in accordance with recruitment ru les. To carry out the entire exercise, the respondents were given three months t ime. Now even after expiry of about six years, such process is yet to be materia lized. 7. The present appellants by filing the review petition being R.P. No. 66/0 2 sought for review of the aforesaid judgment and order. In the review petition, certain inter-departmental communications were brought on record. It was conten ded that in the year 1999 a decision was taken to fill up certain vacancies in t he department considering the day to day difficulties and as there was shortage of staff. It was contended that the Screening Committee was constituted to make appointment against the existing vacant posts of Complier/Lower Division Assista nt. According to the review petitioners/appellants the said Screening Committee conducted a regular selection and selected them and they were appointed. As reg ards the approval of the State Level Empowered Committee, it was contended that such approval was obtained ex post facto. 8. The review petition was disposed of by order dated 08.12.04 with the dir ection that the direction as contained in the aforesaid judgment and order shoul d be complied with within a period of three months. Being aggrieved, the appella nts who were the respondents in the writ petition and review petitioners have fi led this appeal. Be it stated here that they are still continuing in their servi ces on the basis of the interim orders of this Court. 9. In the appeal, appellants have reiterated their stand in the review peti tion. The whole basis of their claim is that since they were selected by the Scr eening Committee, there was due compliance of the recruitment rules and conseque ntly there is no question of holding any further selection so far as they are co ncerned. 10. We have heard Mr. B.C. Das, learned Sr. counsel assisted by Mr. A.K. Pur kayastha and Mr. B. Sinha, learned counsel for the appellants as well as Mr. D. Saikia, learned Standing counsel for the Health Department. We have also heard M r. A.K. Borah, learned counsel representing the writ petitioners/ respondents. 11. Mr. Das in his persuasive pursuits argued that irrespective of the issu es involved in the proceeding, since the appellants, by now, have rendered abou t 8/9 years of service, their such service should not be disturbed at this stage . He also submitted that since there was semblance of selection when the petiti oners were selected by the duly constituted Screening Committee, their such app ointments could not be said to be wholly illegal. He has placed reliance on the two decisions of the Apex Court reported in (1991) Suppl. (2) SCC 421 ( H.C. Put taswamy vs. Hon’ble Chief Justice of Karnataka High Court) and (1995) 6 SCC 531 (Anil Baipadithaya vs. State of Karnataka). 12. Mr. D. Saikia, learned Standing counsel, Health Department fairly admitt ed that the selection as contemplated in the recruitment rule was not held and t hat the writ petitioners did not get equal opportunity as they were not invited for any selection although they were also the aspirants. 13. Mr. A.K. Borah learned counsel representing the private respondents/writ petitioners strenuously argued that under no circumstances, the appellants coul d be shown any leniency, they being the product of nepotism and favouratism. He submitted that when the candidates who had applied pursuant to the aforesaid emp loyment notice, were waiting for call to the selection, the then In-Charge Direc tor of the Health Service surreptitiously appointed the appellants to the depriv ation of all others and in such a situation the appellants are not entitled to a ny relief from this Court. 14. We have considered the rival submissions made by the learned counsel for the parties as well as the materials on record. There is no manner of doubt tha t the appellants were appointed de hors the recruitment rules. There is some dis pute relating to the employment notice dated 26.10.97. Immediately after issuanc e of the notice, the Govt. in the Personnel Department intimated the Director t hat the advertisement deserved to be cancelled as the Director was not the compe tent authority to advertise the posts. However, it was provided that since the l ast date of submission of applications was over in the meantime, the said applic ations should also be taken into account when regular advertisement would be pub lished by the competent authority. By letter dated 28.10.98, the Director of Hea lth Service requested the Govt. to allow him to make temporary appointments till the vacancies were filled up by regular process of selection. In the communicat ion, it was indicated that large number of applications had been received in the Directorate of pursuant to the aforesaid employment notice/advertisement. The s aid letter was followed by another letter dated 19.12.98 with the same request. Thereafter, by order dated 28.10.99 the employment notice/advertisement was canc elled. By letters dated 05.01.99 and 29.10.99 the Govt. of Assam emphasized for filling up the vacant posts immediately. 15. The aforesaid communications and orders find mention in the review petit ion copies of which have also been enclosed to the review petition. It appears t hat the Screening Committee was constituted for appointment of the Compiler/ Low er Division Assistant by order dated 15.11.99 and the said Screening Committee r ecommended 14 candidates for appointment as Lower Division Assistant and 3 cand idates as Complier. It is on the above basis, the appellants came to be appoint ed. 16. From the minutes of the Screening Committee meeting held on 03.12.99, it appears that the said committee only scrutinized the applications and recommend ed the 17 candidates. The emphasis of the Health Directorate for filing up the v acant posts due to paucity of man power as indicated by the Director in his afor esaid communication was also noted. Admittedly the Screening Committee did not s crutinize all the applications received pursuant to the employment notice. Nothi ng has been placed on record as to how it is only the aforesaid 17 candidates in cluding the respondents were only recommended and as to what made the Screening Committee to exclude the other candidates from the purview of such selection, i f at all the task undertaken by the Screening Committee could be said to be of a ny semblance of selection. 17. From the materials on record what has transpired is that fault was found in respect of the employment notice, as according to the Govt., same was not issued by the competent authority. At the same time, it was emphasized that the applications received pursuant to the advertisement should also be considered a longwith the applications which would be received pursuant to the regular advert isement to be issued by the competition authority. Thus, the candidates who resp onded to the employment notice had a right to be considered for appointment in a ccordance with the recruitment rules, but they were deprived of the same and th e appellants were picked up for appointment to the deprivation of all others. 18. Although the advertisement was subsequently cancelled, nothing has been placed on record to suggest that the applications already received pursuant to the employment notice would not be considered in case of issuance of regular adv ertisement. However, the occasion for issuance of regular advertisement did not arise since in the meantime the 17 candidates including the appellants were appo inted. 19. The aforesaid 17 candidates are the beneficiaries of the anomalous situa tion created by the official respondents. Firstly they issued the employment not ice/advertisement and thereafter cancelled the same. In between they also took the decision to consider the applications alongwith the applications which migh t be received pursuant to regular advertisement. When the matter rested thus, th e Director of Health Services emphasized on the need for early filling up of the posts. The request made was to fill up the posts on temporary basis till regul ar selection was held. The task undertaken by the Screening Committee will have to be considered in that context. Such selection of the Screening Committee unde r no circumstances can be said to be in due compliance of the recruitment rules. Even for such temporary employment no prescribed procedure was followed and it was on pick and choose basis the appellants were appointed. Such selection, in o ur considered view cannot confer any indefeasible right to the appellants to con tinue in their services. 20. The recruitment rule holding the field is the Assam Directorate Establis hment (Ministerial) Service Rules, 1973 Rule 10 of the rules provides that appoi ntment shall be made to the post of LDA by the appointing authority by (i) direc t recruitment; (ii) by selection strictly on the basis of merit for amongst the typists of the service with requisite qualification and experience and (iii) by selection on the basis of suitability from amongst the Grade-IV staff of the off ice with requisite qualification and experience. The proportion of vacancies to be filled up in any year shall be 70:20:10 respectively. 21. Rule 12 prescribes the methodology of direct recruitment in terms of whi ch the assessment of vacancies to be made by appointing authority. The Director of Employment and Craftsmen Training, Assam, shall conduct competitive examinati on at such intervals and in accordance with such instructions as the Government may from time to time direct. The Director of Employment and Craftsmen Training shall forward the names of suitable persons in order of preference and shall get the character and antecedents of the selected candidates verified from the DIG of Police. 22. The question which arises for consideration in this proceeding is as to whether the above procedure was followed or not towards appointing the appellant s and if not what consequence would follow. As noticed above, the Director of He alth Services had issued the employment notice with which the Government found f ault. However, since the last date of receipt of applications was already over, it was decided that the candidatures already offered would be considered alongwi th the fresh applicants when the regular advertisement would be issued. Subseque ntly the employment notice was cancelled. The Screening Committee, which purport edly selected the appellants is not within the purview of the recruitment rules. Nothing has been stated as to on what basis, the appellants alone were picked u p for appointment. If it is on the basis of the applications already received, t he Screening Committee could not have ignored the other candidates. Thus what ha s emerged is that the appellants were appointed dehorse the recruitment rules. 23. Mr. Das, learned counsel for the appellants, has emphasized on the long length of service of the appellants. When the very basis and foundation of their appointment is on illegality, continuation of their services on the basis of su ch illegality is of no consequence. The decisions on which, Mr. Das has placed r eliance are simply misplaced. It has been said a long time ago that a case is on ly an authority for what it actually decide, and what not logically follows from it (see Lord Halsbury in Quinn V. Leathen, 1901 AC 495). The ratio of any decis ion must be understood in the background of the facts of that case. 24. In H.C. Puttaswamy (supra), the Ape Court was concerned with the selecti on and appointment of clerical staff of Karnataka High Court. It was found that appointments were made without consulting the Public Service Commission and thus was held to be improper. However, in view of the fact that the appointees conti nued for more than 10 years in their services, the Apex Court saved their appoin tments, although did not approved the course of action adopted by the Chief Just ice of the High Court towards their appointments. 25. The second case relied upon by Mr. Das, learned counsel for the appellan ts is in respect of admission in professional courses. Although it was found tha t admission was secured by the appellants by showing incorrect rankings in collu sion with the members of selection scrutiny committee, the Apex Court while decr ying and condemning the fraud committed by the appellants saved their admissions as their such admission was not challenged by any other eligible candidates nor they deprived any other merited students of their legitimate seats. Same is no t the case on hand. The appellants have deprived the other eligible candidates a nd their appointments have also been challenged by the deprived candidates. 26. In State of Punjab Vs. Surinder Kaur reported in (1992) 1 SCC 489, the A pex Court reiterated that a decision is available as a precedent only if it deci des a question of law. It is futile to suggest that since the Supreme Court unde r somewhat similar circumstances saved the services and admissions of the person s concerned, this Court exercising its power of judicial review under Article 22 6 of the Constitution of India must also adopt the same kind of approach. In Sur inder Kaur (supra) the Apex Court was concerned with regularization of the servi ces of temporary lecturers. Finding fault with the direction of the High Court t o allow them to continue into services, it was observed thus: It is, therefore, futile to suggest that if the Supreme Court has issued an ord er which apparently seems to be similar to the impugned order, the High Court ca n also do so. There is still another reason while the High Court cannot be equat ed with the Supreme Court. The Constitution has, by Art. 142, empowered the Supr eme Court to make such orders as may be necessary for doing complete justice in any case or matter pending before it , which authority the High Court does not enjoy. The jurisdiction of the High Court, while dealing with a writ petition, i t circumscribed by the limitations discussed and declared by the judicial decisi ons, and it cannot transgressed the limits on the basis of whims or subjective s ense of justice varying from judge to judge. Though the High Court is entitled t o exercise the judicial discretion in deciding writ petitions or civil revision applications, but this discretion has to be confined in declining to entertain p etitions and refusing to grant relief, asked for by petitioners, on adequate con sideration; and it does not permit the High Court to grant relief on such a cons ideration alone. 27. The appellants have been continuing in their services on the strength of the interim order passed by this Court. As has been held by the Apex Court in t he case of Secretary, State of Karnataka Vs. Uma Devi (3) reported in (2006) 4 S CC 1, such litigious employment is of no consequence. The appellants are not in their services on the strength of merit of their case, but have been continuing on the strength of the interim order passed by this Court. The wide power under Article 226 of the Constitution of India are not intended to be used for the pur pose of perpetuating the illegality, irregularity or impropriety committed by th e official respondents. 28. The learned counsel for the appellants put must emphasis on the humanita rian aspects of the matter. As has been held by the Apex Court in Ahmedabad Muni cipal Corporation Vs. Virendra Kumar Jayantibhai Patel reported in (1997) 6 SCC 650, the sympathy or equality is out of place especially, where the selection is governed by statutory rules. If the plea of the appellants is to be accepted, i t will be open for the Department to favour any person or to appoint any person without following the procedure provided in the recruitment rules, which would a lso lead to nepotism and arbitrariness. In this context, the following observati ons of the Apex Court in Uma Devi’s Case are worth noting. 4. But, sometimes this process is not adhered to and the constitutional scheme of public employment is bypassed. The Union, the States, their departments and i nstrumentalities have resorted to irregular appointments, especially in the lowe r rungs of the service, without reference to the duty to ensure a proper appoint ment procedure through the Public Service Commissions or otherwise as per the ru les adopted and to permit these irregular appointees or those appointed on contr act 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 opportuni ty 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 w ages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts hav e not always kept the legal aspects in mind and have occasionally even stayed th e regular process of employment being set in motion and in some cases, even dire cted that these illegal, irregular or improper entrants be absorbed into service . A class of employment which can only be called litigious employment , has ris en like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Cons titution of India, Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social ju stice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pon dered over. It is time, that Courts desist from issuing orders preventing regula r selection or recruitment at the instance of such persons and from issuing dire ctions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat t he very Constitutional scheme of public employment. It has to be emphasized that this is not the rile envisaged for High Courts in the scheme of things and thei r wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or impropr ieties or for scuttling the whole scheme of public employment. Its role as the s entinel and as the guardian of equal rights protection should not be forgotten. 43. Thus, it is clear that adherence to the rule of equality in public emplo yment is a basic feature of our Constitution and since the rule of law is the co re of our Constitution, a court would certainly be disabled from passing an orde r 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 Const itution. 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 contr actual appointment, the appointment comes to an end at the end of the cntract, i f 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 co uld 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 wa ge worker is continued for a time beyond the term of his appointment, he would n ot be entitled to be absorbed in regular service or made permanent, merely on th e strength of such continuance, if the original appointment was not made by foll owing a due process of selection as envisaged by the relevant rules. It is not o pen to the court to prevent regular recruitment at the instance of temporary emp loyees 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. The High Cour ts acting under Article 226 of the Constitution, should not ordinarily issue dir ections for absorption, regularization, or permanent continuance unless the recr uitment itself was made regularly and in terms of the constitutional scheme. Mer ely because an employee had continued under cover of an order of the court, whic h we have described as litigious employment in the earlier part of the