IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1998 of 2008 PANKAJ KUMAR Versus THE BIHAR BIDHAN PARISHAD & ORS ----------- 02 02.02.2010 Heard learned counsel for the petitioner and learned counsel appearing on behalf of Bihar Bidhan Parishad. The petitioner is aggrieved by the order dated 22.7.2006 removing him from the post of Orderly Peon on the ground that his initial appointment itself was not in consonance with law. Learned counsel very fairly submits that the petitioner has not pleaded any explanation for this delay in questioning his order of termination nearly about one and half years later. Learned counsel submits that the petitioner came to be regularized after his initial appointment on 18.1.2006 and thereafter all issues of illegality/irregularity in the appointment loose their relevance. He acquires status of permanency and cannot be removed except accordance with law by a regular proceeding, as termination is a major punishment. The respondents have filed a counter affidavit. On the own showing of the petitioner his 2 initial appointment dated 11.5.2001 was for a limited duration from 1.5.2001 to 28.2.2002 or the tenure of the incumbent Chairman whichever is earlier, in a temporary capacity. The letter of appointment itself states that he was an outsider being appointed on a vacant post. The writ application does not plead that this appointment was made after open advertisement and competitive selection on merits and neither does the letter of appointment suggest so. His service was then extended at intervals on 21.1.2002, 28.2.2002, 24.3.2003, 16.4.2004 and 15.7.2004. He then applied for regularization which followed on 18.1.2006. If the very initial appointment of the petitioner was contrary to law, the question of regularizing an illegal appointment simply does not arise. Regularization is not a mode of appointment. The order of regularization does not display and neither the writ petition pleads that the petitioner participated in any form of competitive selection with others in general before he was so considered as distinct from the preferential treatment given to the three persons including the petitioner in the order of regularization, after he had continued to 3 work in this manner. The petitioner was given a show-cause to which he replied, when the impugned order has been passed terminating his service vide a reasoned order disclosing the nature of the illegal appointment and which facts are not dispute in the writ petition. The submission on behalf of the petitioner that this is the manner in which appointments have been made in the council does not appeal to the Court to perpetuate such illegality by putting the seal of the court upon it. The manner in which the petitioner was originally appointed for a limited duration, gradually extended from time to time culminating in his regularization strikes a similar cord with what has been noticed by the Supreme Court in A.I.R. 1992 S.C. 789 in the relevant extract at paragraph-15 as follows: “Apart from the fact that the petitioners cannot be directed to be regularized for the reasons given above, we may take note of the pernicious consequences to which the direction for regularization of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has became a common practice to ignore the Employment Exchange and the persons registered in the Employment 4 Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal consideration including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such back-door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in Government Departments, Public Undertakings or Agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus 5 jeopardised on both counts.” From the counter affidavit of the respondents this Court holds them bound to the standard by which they profess to act. The respondents cannot make any appointment against sanctioned vacant posts except after proper advertisement and open competitive selection on merits. Being a constitutional body it is expected that they shall not violate the constitution by resorting to any subterfuge by making appointment otherwise against vacant sanctioned post without filling them up regularly in accordance with law. The writ application is dismissed. P.K. (Navin Sinha, J.)