1 WP 6435/2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6435 OF 2007 With Civil Application No.369 Of 2008 Hashmi Sayyad Masud & Others ... Petitioners. Versus The State of Maharashtra & Others... Respondents. ­­­­­­ Shri. S.R. Barlinge, Advocate for the petitioners. Shri. N.B. Patil, Assistant Government Pleader, for respondents Nos.1 and 2. Shri. Alok Sharma, Assistant Solicitor General, for respondent No.3. ­­­­­­­ CORAM: NARESH H PATIL & N.D. DESHPANDE, JJ. Order reserved on : 2nd July 2009 Order pronounced on : 7th July 2009. ORDER (Per Naresh H Patil, J.): 1) Heard. 2) The petitioners impugn the judgment and order dated 1­8­2007 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad, in Original Application No.1019 of 2001. 2 WP 6435/2007 3) In short, the petitioners’ contention is that, they were appointed as temporary Sports Coaches. Their appointments were for a fixed period of six months at a time. On 6­1­1998 as many as 62 posts of Sports Coaches were sanctioned by the Government of Maharashtra. On 18­9­2000 the Director of Sports and Youth Services, Maharashtra State Pune, respondent No.2 herein, issued orders in favour of the petitioners. They were appointed on temporary basis. Their last appointment order expired in the month of March 2001. 4) On 9­10­1998, according to the petitioners, the Regional Selection Board had advertised 69 posts of Sports Coaches. The petitioners appeared for the written examination conducted by the Regional Selection Board and passed the said examination. In the mean while, the Regional Selection Boards came to be abolished by the Government in the month of May 3 WP 6435/2007 2000. The Director of Sports and Youth Services Pune interviewed the petitioners and similarly situated persons. During pendency of Original Application No.606 of 2001 before the Tribunal, two orders were issued by the Director continuing the petitioners in service for a period of two months at a time. Out of 69 posts advertised by the Regional Selection Board, 38 posts were sought to be filled in by order dated 10­12­2001. On the remaining posts, the petitioners were working along with other candidates. It is further contended that as the selection process was not complete by the Board, the interim relief granted by the Maharashtra Administrative Tribunal came to be vacated by an order dated 10­4­2006. The Government had issued a Resolution dated 8­3­1999 and the services of candidates who were not selected by the Selection Board or duly constituted selection committee were regularised. But the petitioners’ services were not regularised accordingly. 4 WP 6435/2007 5) The respondent No.2 – Director of Sports and Youth Services terminated the services of the petitioners by an order dated 2­4­2004. In the termination order two reasons have been mentioned ­ (1) that the posts on which the petitioners were appointed were reserved for Backward class categories; and, (2) the duly selected candidates were available for appointment on the said posts. 6) By filing Miscellaneous Application No. 256 of 2004 the the issue of termination was raised by the petitioners before the Tribunal and thereafter the order of termination was withdrawn by the respondents, according to the petitioners. 7) This writ petition was filed in the year 2007. 8) On behalf of respondent Nos.1 to 4, affidavit­in­reply is filed through Chandrakant Ramdas Kamble, In­charge Deputy Director of 5 WP 6435/2007 Sports and Youth Services, Aurangabad Division, Aurangabad. The deponent states that the petitioners were appointed temporarily from time to time because suitable candidates from the backward classes category were not available. The Government in Social Welfare, Cultural Affairs and Sports Department vide Government Resolution dated 4­9­1999 had constituted a selection committee for selection of Group C employees under the chairmanship of the Director of Sports and Youth Services, Maharashtra State, Pune. The designations of other members of the committee are mentioned in para 10 of the reply affidavit. The selection committee’s meetings were held and they conducted interviews and accordingly candidates were selected. The new appointments were made as a consequence of advertisement issued by M.S.S.S.B. based on the combined merit assessment of written test and interview. 6 WP 6435/2007 9) The deponent further contended that at present the rules framed by the Government of Maharashtra under proviso to Article 309 of the Constitution on 18­12­2001 are in existence. The earlier rules framed on 1­1­1981 automatically stood cancelled or were superseded. 10) In substance, the deponent states that the proposal of the Director of Sports for regularising the services of the petitioners was rejected on the ground that as per the Government Resolution of General Administration Department dated 25th July 1994 the select list prepared by the Selection Board was valid for one year only and the Government had dissolved all the selection Boards on 11th June 1999 and by a Government Resolution dated 6th August 2003 withheld all the selection procedure of the said Boards at that stage. The said policy was upheld by the Courts. It is contended that in the State Legislature the Government had clarified that hereafter no more appointment was 7 WP 6435/2007 to be given from the pending select list and in future the vacancies would be filled in according to the new selection procedure. Reliance was placed by the deponent on a judgment of the Apex Court in Secretary, State of Karnataka v. Umadevi, AIR 2006 SC 1806. 11) The learned counsel for the petitioners Shri. S.R. Barlinge submits that the petitioners’ services were terminated in the year 2004. In fact, the petitioners’ services ought to have been regularised. They appeared for written test and interviews were held. The petitioners were appointed though temporarily from time to time by respondent No.2. The petitioners were discriminated from other similarly situated candidates. The issue of petitioners’ appointment on reserved posts was also refuted by the counsel. It was submitted that the petitioners’ case was recommended by the authorities to the State Government but the same was wrongly rejected. 8 WP 6435/2007 12) The learned Assistant Government Pleader Shir. N.B. Patil heavily relied on the affidavit­ in­reply filed by respondents and submitted that the petitioners are seeking regularisation when the petitioners’ order of termination passed in 2004 still subsists. Therefore, the petition itself is misconceived. The petitioners were appointed on temporary basis for a limited period. Their appointment orders would exhibit that they were not appointed in adherence to the selection procedure established by law. The respondent No.2 – Director of Sports had no power and authority in law to issue appointment orders and even if some appointments were issued in favour of the petitioners the petitioners would not get any right or claim of permanency or regularisation in service. The Government constituted a committee, framed rules under proviso to Article 309 and thereafter set the selection process in motion. 9 WP 6435/2007 13) We have considered the submissions advanced. Perused the relevant materials and the orders placed before us. The learned counsel Shri. Barlinge has placed reliance on reported judgment in the case of U.P. State Electricity Board vs. Pooran Chandra Pandey, 2007 AIR SCW 6904. The learned counsel has invited our attention to paragraphs 16,17 and 18 of the said judgment. We have perused the same. From the material placed before us we find that the petitioners have no right to the posts for claiming regularisation or permanency in service. They were not selected by a legally constituted selection committee. They were appointed by the authorities of the State from time to time for few months. At the most their appointments were temporary in nature or at the most they were ad hoc one. The appointments were made on the posts reserved for backward class categories therefore recommendation made by some authorities to the State Government are of no use to the petitioners. The petitioners were continued in 10 WP 6435/2007 service under the interim orders passed by the Tribunal which would not confer any right on them to claim equity or continuance in service. We may refer to the judgment reported in Secretary, State of Karnataka v. Umadevi (3) and others, (2006) 4 SCC 1. We may refer to para 43 of the judgment which reads thus: “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, 11 WP 6435/2007 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 workers 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 the 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. The High Courts 12 WP 6435/2007 acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, 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 the 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, where 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 13 WP 6435/2007 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.” We may further refer to paragraphs 90 and 91 of the reported judgment in Official Liquidator v. Dayanand (2008) 10 SCC 1. “90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the 14 WP 6435/2007 credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed. 91. We may add that in our constitutional set­up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional 15 WP 6435/2007 ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient fractioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. We place further reliance on a reported judgment in State of Bihar v. Upendra Narayan Singh, (2009) 5 SCC 65. In para 25 of the judgment the Apex Court held thus: “25. The equality clause enshrined in Article 16 mandates that every appointment to public posts or 16 WP 6435/2007 office should be made by open advertisement so as to enable all eligible persons to compete for selection on merit – Umesh Kumar Nagpal v. State of Haryana = (1994) 4 SCC 138, UPSC v. Girish Jayanti Lal Vaghela = (2006) 2 SCC 482, State of Manipur v. Y. Token Singh = (2007) 5 SCC 65 and Municipal Corpn., Hyderabad v. P. Mary Manoranjani = (2008) 2 SCC 758. ..... “ 14) We, therefore, find that the Tribunal has correctly appreciated the facts of the case, applied the principles of law reasonably and adopted a sound approach and view in deciding the Application filed by the petitioners. 15) In exercise of writ jurisdiction we do not notice any glaring error of fact and law in the impugned judgment and order. There is no merit in the petition. 17 WP 6435/2007 16) The Writ Petition is dismissed. Civil Application No.369 of 2008 stands disposed of. (N.D. DESHPANDE, J.) (NARESH H PATIL, J.) rsl/ wp.6435.07