Himachal Pradesh High Court

Vijay Sood vs Central University Of Hp on 23 December, 2015

Bench:
Chief Justice
,
Tarlok Singh Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA

CWP No.575 of 2015 a/w CWP No.
580 of 2015.

Judgment reserved on 16.12.2015

.

Date of decision: 23rd December, 2015.

1. CWP No. 575 of 2015.

Vijay Sood .....Petitioner.
Versus

Central University of HP, Dharamshala
...Respondent

2. CWP No. 580 of 2015.

of
Mohan Kumar and others .....Petitioners.

Versus
Central University of HP, Dharamshala
...Respondent

Coram:

rt

The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting ?1 Yes.

For the petitioner(s): Mr. Sanjeev Bhushan, Sr.
Advocate with Mr. Rajesh Kumar,
Advocate.

For the respondent(s): Mr. Ashok Sharma, Assistant
Solicitor General of India with Mr.

Angrez Kapoor, Advocate.

_____________________________________________________

Mansoor Ahmad Mir, Chief justice.

These two writ petitions involve common

questions of law and fact, hence taken up together for

disposal by this common judgment.
Whether the reporters of Local Papers may be allowed to see the judgment ?

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2. The writ petitioners, by the medium of

these writ petitions, have invoked the jurisdiction of this

Court for the grant of a writ of mandamus commanding

.

the respondents to regularize their services, on the

grounds taken in the memo of the writ petitions.

3. Precisely, the case, as projected by the writ

petitioners, is that the respondent-University came to

of
be established in the year 2010 in the State of H.P. On

the establishment of the University, it was in the dire
rt
need of the staff for running its affairs. It is stated that

the respondent-University invited applications for filling-

up the various posts, such as Data Entry Operator,

driver and office attendant/peon. The petitioners were

interviewed along with other persons and as such were

offered appointment on the terms and conditions as

contained in their appointment orders on short term

arrangement basis. It is contended that the Executive

Council of the respondent-University in 2013 revised

the salaries of such type of employees and thereafter

petitioners are being given some higher salary. It is

further averred in the writ petitions that respondent-

University has now appointed some persons on

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outsourcing and they are getting higher pay than the

petitioners but the services of the petitioners have not

been regularized till date despite the fact that they have

.

put their efforts and lost their prime youth while serving the

respondent-University. They are stated to have made

several requests to the respondent-University for their

regularization, but in vain. Hence the writ petitions in hand.

of

4. The respondent has filed the replies in both

the petitions and has contested the writ petitions on the

ground that the writ petitioners came to be appointed
rt
without following due process of law and their services

came to be extended from time to time on their

requests. Some of the persons, who came to be

appointed after them, have been appointed on regular

posts because they have participated in the selection

process and they made the grade. It is stated that the

petitioners have also participated in the selection

process but they have failed to make a grade. It is apt

to reproduce para 7 of the reply filed in CWP No. 575

of 2015 herein.

"7.That the University vide advertisement No.002/2011
dated 17.4.2011 (Annexure R-9) advertised various
Non-Teaching positions on regular basis wherein the

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last date of receipt of applications was 15th May, 2011.
The petitioner while working with the above mentioned
project applied for the post of Lower Division Clerk
against the same advertisement. The petitioner was not
short listed for the post of Lower Division Clerk due to

.

'overage'. Copy of screening Committee proceedings

are placed at Annexure R-10. This very fact has
deliberately not been brought to the notice of the
Hon'ble Court by the petitioner due to the reasons best

known to her."

5. It is also profitable to reproduce paras 9

of
and 10 of the reply filed in CWP No. 580 of 2015

herein.

rt"9.That University vide advertisement
002/2011 dated 17.4.2011 advertised various Non-

No.

Teaching positions on regular basis and the
petitioner No. 1 applied for the post of Lower
Division Clerk against the same advertisement.
The petitioner was not short listed for the post of

Lower Division Clerk due to 'less scores' in 10+2.
Cop of Screening Committee proceedings are

placed at Annexure R-13. The very fact has not
been brought to the notice of the Hon'ble Court by

the petitioner due to the reasons best known to
him."

10.That the petitioner No. 2 and 3 have also
applied for the posts of Driver and Office Attendant
respectively in response to advertisement No.
002/2011 dated 17.4.2011 but the Selection
Committee for these positions have not been
convened. This very fact has not been brought the
notice of the Hon'ble Court by the petitioners due
to the reasons best known to them."

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6. The petitioners have filed common

rejoinder to both the writ petitions and have tried to

.

carve out a case that other similarly situated persons

have been appointed on regular basis.

7. The point germane for consideration in

these writ petitions is whether a person/employee who

of
came to be appointed for a fixed period and thereafter

extension in service was granted from time to time can
rt
claim regularization, without following due process of

law? The answer is in negative for the following

reasons.

8. While issuing the appointment letters, it

was made clear that they shall not be entitled for any

other allowances or service benefits admissible to

regular employees and this short term arrangement

shall not entitle them for appointment on regular basis.

The appointment was initially for a period of three

months and thereafter the respondents kept on

extending such appointment from time to time. Writ

petitioners have participated in the selection process

but failed to make grade and other similarly situated

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persons made the grade thus they cannot claim

regularization.

9. In case, Director, Institute of Management

.

Development, U.P. versus Smt. Pushpa Srivastava

reported in AIR 1992 SC 2070, the apex Court has

held as under.

"22. In dealing with this, at page 577 (of 1990 (1) Supp SCR

562) : (at p. 2238 of AIR 1990 SC 2228), the Court observed

of
"If any person who does not possess the requisite
qualifications is appointed under the said clause, he will
be liable to be replaced by a qualified person. Clause
rt (iii) of Rule 9 states that a person appointed under
clause (i) shall, as soon as possible, be replaced by a

member of the service or an approved candidate
qualified to hold the post. Clause (e) of Rule 9,
however, provided for regularisation of service of any
person appointed under clause (1) of sub-rule (a) if he

had completed continuous service of two years on
December 22, 1973, notwithstanding anything
contained in the rules. This is a clear indication that in

the past the Government also considered it Just and
fair to regularise the services of those who had been in

continuous service for two years' period to the cut-off
date. The spirit underlying this treatment clearly shows

that the Government did not consider it just, fair or
reasonable to terminate the services of those who were
in employment for a period of two or more years'period
to the cut-off date. 'This approach is quite consistent
with the spirit of the rule which was intended to be
invoked to serve emergent situations which could not
brook delay. Such appointments were intended to be
stop-gap temporary appointments to serve the stated

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purpose and not long term ones. The rule was not
intended to fill a large number of posts in the service
but only those which could not be kept vacant till
regular appointments were made in accordance with
the rules. But once the appointments continuted for

.

long, the services had to be regularised if the

incumbent possessed the requisite qualifications as
was done by subrule (e). Such an approach alone
would be consistent with the constitutional philosophy

adverted to earlier. Even otherwise, the rule must be so
interpreted, if the language of the rule permits, as will
advance this philosophy of the Constitution. If the rule

of
is so interpreted it seems clear to us that employees
who have been working on the establishment since
long, and who possess the requisite qualifications for
rt the job as obtaining on the date of their employment,
must be allowed to continue on their jobs and their
services should be regularised."

10. It is apt to reproduce paras 50 to 69 of the

judgment delivered by the apex Court in case
State of

U.P. versus Neeraj Awasthi & Ors.
reported in 2006

AIR SCW 123.

"50. An attempt to induct an employee without following
the procedure would be a backdoor appointment. Such
backdoor appointments have been deprecated by this

court times without number. [see for example delhi
Development Horticulture Employees' union v. Delhi
Admn. (1992) 4 SCC 99, para 23].

51. Even in
State of Haryana v. Piara
singh [ (1992) 4
SCC 118], whereupon the learned counsel for the
parties relied upon, it is stated:"ordinarily speaking, the
creation and abolition of a post is the prerogative of the
Executive. It is the Executive again that lays down the

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conditions of service subject, of course, to a law made
by the appropriate legislature. This power to prescribe
the conditions of service can be exercised either by
making rules under the proviso to
Article 309
of the
constitution or (in the absence of such rules) by issuing

.

rules/instructions in exercise of its executive power.

The court comes into the picture only to ensure
observance of fundamental rights, statutory provisions,
rules and other instructions, if any, governing the

conditions of service. The main concern of the court in
such matters is to ensure the rule of law and to see that
the Executive acts fairly and gives a fair deal to its

of
employees consistent with the requirements of
articles
and 16. . "

52. A 3 Judge Bench of this Court upon taking into
rt
consideration a large number of decision in
A. Umarani
v. Registrar, Cooperative Societies and Others
[ (2004)
7 SCC 112] held that illegal appointments cannot be

regularised. It was further held: "no regularisation is,
thus, permissible in exercise of the statutory power
conferred under
Article 162
of the Constitution if the

appointments have been made in contravention of the
statutory rules. "

53. The power to frame regulations is expressly

conferred on the Board in terms of section 26 of the
Act. Such regulations are to be made with the previous

approval of the State government. Indisputably, the
State Government by its letter dated 17.3.1999 refused
to accord permission in relation thereto.

54. If no appointment could be made by the State in
exercise of its power under
Article 162
of the
Constitution of India as the same would be in
contravention of the statutory rules, there cannot be
any doubt whatsoever that the board or for that matter
the Market Committees cannot make an appointment in
violation of the Act and the Regulations framed
thereunder.

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55. In Executives Engineer, ZP Engg. Divn.
And
Another v. Digambara Rao and others
[ (2004) 8 SCC
262], it was held:"it may not be out of place to mention
that completion of 240 days of continuous service in a
year may not by itself be a ground for directing an order

.

of regularisation. It is also not the case of the

respondents that they were appointed in accordance
with the extant rules. No direction for regularisation of
their services, therefore, could be issued. (See
A.

Umarani v. Registrar
, Coop. Societies and Pankaj
Gupta v. State of Jandk) submission of Mr. Maruthi Rao
to the effect that keeping in view the fact that the

of
respondents are diploma-holders and they have
crossed the age of 40 by now, this Court should not
interfere with the impugned judgment is stated to be
rt
rejected.
"[see also Madhyamik Shiksha Parishad, u. P.
v. Anil Kumar Mishra and Others, (2005) 5 SCC 122]

56.
In
Mahendra L. Jain and Others v. Indore

Development Authority and Others
[ (2005) 1 SCC 639,
it was categorically held:"the question, therefore, which
arises for consideration is as to whether they could lay

a valid claim for regularisation of their services. The
answer thereto must be rendered in the negative.
Regularisation cannot be claimed as a matter of right.

An illegal appointment cannot be legalised by taking
recourse to regularisation. What can be regularised is

an irregularity and not an illegality. The constitutional
scheme which the country has adopted does not
contemplate any back-door appointment. A state before

offering public service to a person must comply with the
constitutional requirements of
Articles 14
and
of the
Constitution. All actions of the State must conform to
the constitutional requirements. A daily-wager in the
absence of a statutory provision in this behalf would not
be entitled to regularisation. (See
State of U. P. v. Ajay

kumar and Jawaharlal Nehru Krishi vishwa Vidya/aya v.
Bal Kishan Soni. ) "

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57.
In Manager, Reserve Bank of India, bangalore v. S.
Mani and Others [ (2005) 5 scc 100],
Umarani
(supra)
was followed holding that in law 240 days of continuous
service by itself give rise to permanence which reason
has weight with the opinion of learned single Judge of

.

the High Court.

58. It is, therefore, not correct to contend that only
because in the correspondences between the State
and the Board the appointments of such persons have

been described to be irregular, the same would not
mean that they are not illegal.

59. In any event, no temporary or permanent status can

of
be granted to an employee by way of regularisation.
[see
Union of India v. Gagan Kumar
(
2005) 5 SCC 70
and State of Maharashtra and Another v. R. S. Bhonde

rt
and Others (2005) 5 SCC 751].

60. Mr. Chaudhary has relied upon a large number of
decisions to contend that this Court has directed

framing of such schemes.

61.
In
Surya Narain Yadau and Others v. Bihar State
Electricity Board and Others
[ (1985) 3 SCC 38], the

writ petitioners were appointed as trainee engineers
pursuant to an advertisement issued therein.
Representations have been made to them that after

their training was completed, they would be absorbed
in regular employment of the Board. Some employees

who were getting age-barred for government
employment and had left the Board were told to come
back under the temptation of getting permanently

employed under the board. When the Board was
reeling under a strike of its employees, these trainee
engineers stood by the Board to keep up the
generation and distribution of electricity and had been
assured of absorption. The Board had decided to
absorb them on permanent basis but initially on a
probation of two years without conducting any further
examination. It was in aforementioned situation, this

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Court applied the principles of promissory estoppel and
observed that the Board should have regularized the
services of the trainee engineers. The Court did not lay
down any law that regularization would be directed
despite the fact appointments had been made in

.

violation of the rules,

62.
In
Piara Singh
(supra) , this Court was beset with
the scheme framed by the State to regularize the
services of its employees. The bench did not go into

the question of validity or otherwise of such a scheme.
We have, however, noticed hereinbefore that even
such a scheme would be impermissible in law.

of

63. In Madan Singh and Others etc. v. State of Haryana
and Others [air 1988 SC 2133], this Court was dealing
with a matter where the State Government had come
rt
forward with orders from time to time for absorption of
work charged employees. The Court was of the opinion
that the benefits conferred thereunder were available to

them.

64.
In
Raj Narain Prasad and Others v. State of U. P.
and Others
[ (1998) 8 SCC 473] yet again no law has

been laid down.

No decision other than
Piara Singh

(supra) has been referred to. Before this Court, a
scheme was submitted in terms whereof the scheme

had undertaken to regularize work-charged employees
employed prior to 19.9.1985. This Court besides the

proposals made therein issued certain other directions.

65. Strong reliance has been placed by mr. Chaudhary
on
R. N. Nanjundappa v. T. Thimmiah and Anr.
[ (1972)

2 SCR 799] for the proposition that irregular employees
can be regularized. Therein it was held :"the contention
on behalf of the State that a rule under
Article 309
for
regularisation of the appointment of a person would be
a form of recruitment read with reference to power
under
Article 162
is unsound and unacceptable. The
executive has the power to appoint. That power may
have its source in
Article 162.
In the present case the

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rule which regularised the appointment of the
respondent with effect from February 15, 1958,
notwithstanding any rules cannot be said to be in
exercise of power under
article 162.
First,
Article 162

does not speak of rules whereas
Article 309
speaks of

.

rules. Therefore, the present case touches the power of

the State to make rules under
Article 309
of the nature
impeached here. Secondly when the government acted
under
Article 309
the government cannot be said to

have acted also under
Article 162
in the same breath.
The two articles operate in different areas.
Regularisation cannot be said to be a form of

of
appointment. Counsel on behalf of the respondent
contended that regularisation would mean conferring
the quality of permanence on the appointment whereas
rt
counsel on behalf of the State contended that
regularisation did dot mean permanence but that it was
a case of regularisation of the rules under
Article 309.

Both the contentions are fallacious. If the appointment
itself is in infraction of the rules or if it is in violation of
the provisions of the Constitution illegality cannot be

regularised. Ratification or regularisation is possible of
an act which is within the power and province of the
authority but there has been some non-compliance with

procedure or manner which does not go to the root of
the appointment. Regularisation cannot be said to be a

mode of recruitment. To accede to such a proposition
would be to introduce a new head of appointment in
defiance of rules or it may have the effect of setting at

naught the rules. "

66. The said decision has been noticed in various
judgments referred to hereinbefore. It instead of helping
the Respondents goes directly against them.

67. In AH Manipur Regular Posts Vacancies Substitute
Teachers' Association v. State of Manipur [1991 Supp
(2) SCC 643], this Court was confronted with various
interim orders passed by the High Court from time to

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time in several writ petitions. It was observed that if the
direct recruitment takes place on one hand and
substituted teachers are also directed to be regularized
subsequently, it would create an enormous problem for
the department to accommodate both the categories of

.

persons and in the aforementioned situation, in

exercise of its power under
Article 142
of the
Constitution of India, this Court with a view to avoid
further litigation and also to avoid seemingly conflicting

interim orders issued by the High Court gave certain
directions. Such directions having evidently been
issued by this court in exercise of its power under

of

Article 142
of the Constitution of India do not constitute
a binding precedent. Even therein, the scope and ambit
of this Court's jurisdiction under
Article 142
vis-a-vis
rt
existence of the statute and statutory rules and the
constitutional mandate contained in
Articles 14
and
of the Constitution of India had not been taken into

consideration.

68. On the other hand, in a series of decisions, which
we have noticed hereinbefore, this Court has now firmly

laid down the law that regularization cannot be a mode
of appointment.

69. Mr. Chaudhari has placed strong reliance upon the

provisions of the U. P. Regularisation of Adhoc
Appointments (on Posts outside the Purview of the

Public Service commission) Rules, 1979 purported to
have been framed by the State in pursuance of the
provisions of clause (3) of
Article 348
of the

Constitution of India. Rule 4 of the said Rules reads,
thus :"4. Regularisation of ad hoc appointments- (1)
Any person who (i) was directly appointed on ad hoc
basis on or before June 30, 1998 and is continuing in
service as such on the date of commencement of the
Uttar Pradesh Regularisation of Ad hoc Appointments
(On Posts outside the Purview of the Public service
Commission) (Third amendment) Rules, 2001. (ii)

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possessed requisite qualifications prescribed for
regular appointment as the time of such ad hoc
appointment; and (iii) has completed or, as the case
may be, after he has completed three years service
shall be considered for regular appointments in

.

permanent or temporary vacancy, as may be available,

on the basis of his record and suitability before any
regular appointment is made in such vacancy in
accordance with the relevant rules or orders. (2) In

making regular appointments under these rules
reservations for the candidates belonging to the
Scheduled castes, Scheduled Tribes, Backward

of
classes and other categories shall be made in
accordance with the orders of the Government in force
at the time of recruitment. (3) For the purpose of sub-
rtrule (1) the appointing authority shall constitute a
selection Committee. (4) The appointing authority shall
prepare an eligibility list of the candidates, arranged in

order of seniority, as determined from the date of order
of appointment and if two or more persons are
appointed together from the order in which their names

are arranged in the said appointment order, the list
shall be placed before the Selection Committee along
with the character rolls and such other records of the

candidates as may be considered necessary to assess
their suitability. (5) The Selection Committee shall

consider the cases of the candidates on the basis of
their records referred to in sub-rule (4). (6) The
Selection Committee shall prepare a list of the selected

candidates, the names in the list being arranged in
order of seniority and forward it to the appointing
authority. "

11. The apex court in Nagendra Chandra etc.

etc vs. State of Jharkhand and Ors., reported in

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2007 AIR SCW 7666 has laid down the same

principles of law. It is apt to reproduce para 9 of
the

said judgment
herein.

.

"9. In view of the foregoing discussion, we have no

option but to hold that if an appointment is made in
infraction of the recruitment rules, the same would

be violative of
Articles 14
and
of the
Constitution and being nullity would be liable to be
cancelled. In the present case, as the vacancies

of
were not advertised in the newspapers, the
appointments made were not only in infraction of
Rule 663(d) of the Bihar Police Manual but also
rt violative of
Articles 14
and
of the Constitution,
which rendered the appointments of the appellants

as illegal; as such the competent authority was
quite justified in terminating their services and the
High Court, by the impugned order, was quite
justified in upholding the same."

12. It is also apposite to reproduce para 9 of

the judgment delivered by the apex Court in
State of

Jharkhand & others versus Manshu Kumbhkar
,

reported in 2008 AIR SCW 488.

"9 In
Ashwani Kumar and Ors. v. State of Bihar and Ors.

(1997 (2) SCC 1), it was noted in paras 13 and 14 as
follows:

"13. So far as the question of confirmation of these
employees whose entry itself was illegal and void,
is concerned, it is to be noted that question of
confirmation or regularisation of an irregularly

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appointed candidate would arise if the candidate
concerned is appointed in an irregular manner or
on ad hoc basis against an available vacancy
which is already sanctioned. But if the initial entry
itself is unauthorised and is not against any

.

sanctioned vacancy, question of regularising the

incumbent on such a non-existing vacancy would
never survive for consideration and even if such

purported regularisation or confirmation is given it
would be an exercise in futility. It would amount to
decorating a still-born baby. Under these

of
circumstances there was no occasion to regularise
them or to give them valid confirmation. The so-

rtcalled exercise of confirming these employees,
therefore, remained a nullity."

13. The apex Court has laid down the similar

principles of law in case Mg. Dir., Bangalore

Metroloplitan Tpt. Corpn. Versus Sarojamma & Anr.

reported in 2008 AIR SCW 5480.

"5. It may be mentioned that there is no principle of
law that a person appointed in a temporary

capacity has a right to continue till a regular
selection Rather, the legal position is just the

reverse, that is, that a temporary employee has no
right to the post vide
State of U.P. v. Kaushal
Kishore
, (1991) 1 SCC 691. Hence, he has no
right to continue even for a day as of right, far from
having a right to continue till a regular
appointment.

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6. On this sole ground we set aside both the
orders of the learned Single Judge and the
Division Bench of the High Court. This appeal is
allowed. No costs."

.

14. It is apt to reproduce para 24 of the

judgment delivered by the apex Court in
Sate of

Haryana & Ors. vs. Shakuntla Devi
reported in 2008

AIR SCW 8180.

of
"24. The very fact that a regularization scheme was
framed by the State is a clear pointer to show that the
rtconcerned employees were not regularly employed.
They had sought for regularization of their service and
at least in one case, as noticed hereinbefore, for one

reason or the other, the said request was turned down.
The validity thereof was not questioned. It attained
finality.

In the case of Rama Devi, a contention was raised in

the writ petition that the offer of appointment in law was
not for a period of six months but for an indefinite
period. Such a contention cannot be upheld. If the initial

appointment was for a fixed period and the
appointment could be terminated without any notice

and without assigning any reason, such appointment
cannot be said to be an appointment on a permanent

post or a temporary sanctioned post. Unless and until
the post itself is a permanent or a temporary one, the
same would not answer the description of a substantive
and permanent employment. In this case, it had been
shown that the services of Karan Singh was being
renewed for a period of six months on the expiry of the
original or extended tenure."

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15. Similar principles of law have been
laid

down by
the apex Court in
State of Orissa & Anr. V.

Mamata Mohanti
reported in 2011 AIR SCW 1332. It

.

is apposite to reproduce paras 19 and 20 of
the said

judgment
herein.

"19. 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

of
Employment Exchange or putting a note on the Notice Board
etc. that will not meet the requirement of
Articles 14
and
of the Constitution. Such a course violates the mandates of

Articles 14
and
of the Constitution of India as it deprives
rt 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 of the
said Constitutional requirement is to be fulfilled. The equality
clause enshrined in
Article 16
requires that every such

appointment be made by an open advertisement as to
enable all eligible persons to compete on merit.
ORDER BAD IN INCEPTION:

20. It is a settled legal proposition that if an order is bad in its
inception, it does not get sanctified at a later stage. A

subsequent action/development cannot validate an action
which was not lawful at its inception, for the reason that the
illegality strikes at the root of the order. It would be beyond

the competence of any authority to validate such an order. It
would be ironic to permit a person to rely upon a law, in
violation of which he has obtained the benefits. If an order at
the initial stage is bad in law, then all further proceedings
consequent thereto will be non est and have to be
necessarily set aside. A right in law exists only and only
when it has a lawful origin. (vide: Upen Chandra Gogoi v.

State of Assam & Ors., 1998 AIR(SC) 1289; Mangal Prasad
Tamoli (Dead) by L.Rs. v. Narvadeshwar Mishra (Dead) by

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L.Rs. & Ors., 2005 AIR(SC) 1964; and
Ritesh Tiwari & Anr. v.
State of U.P. & Ors.
, 2010 AIR(SC) 3823).
The concept of adverse possession of lien on post or holding
over are not applicable in service jurisprudence. Therefore,
continuation of a person wrongly appointed on post does not
create any right in his favour.

(
Vide Dr. M.S. Patil v. Gulbarga

.

University & Ors., 2010 AIR(SC) 3783)."

16.
In another judgment, the apex Court in

case
Bhupendra Nath Hazarika and Anr. v. State of

Assam and Ors.
, reported in 2013 AIR SCW 401, has

of
laid down the similar principles.

17. rt In a latest judgment delivered by the apex

Court in
State of Bihar and others v. Chandreshwar

Pathak
reported in 2014 AIR SCW 5182, following

principles of law have been laid down. It is apt to

reproduce paras 13 to 16 of
the said judgment
herein.

"13. It is clear from the above order that the

appointment has been given only on the asking of the
Inspector General of Police. There is nothing to show

that any advertisement was issued giving opportunity to
all eligible candidates to compete or any selection
process was undertaken before appointment of the

respondent.

14.
In
State of Orissa & Anr. vs. Mamata Mohanty
,
2011 3 SCC 436, it was observed as under:

"APPOINTMENT / EMPLOYMENT WITHOUT
ADVERTISEMENT:

35. At one time this Court had been of the view
that calling the names from employment
exchange would curb to certain extent the

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menace of nepotism and corruption in public
employment. But, later on, came to the
conclusion that some appropriate method
consistent with the requirements of
Article 16

should be followed. In other words there must

.

be a notice published in the appropriate manner

calling for applications and all those who apply
in response thereto should be considered fairly.

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

of
eligible candidates from the open market by
advertising the vacancies in newspapers having
wide circulation or by announcement in radio
rt and television as merely calling the names from
the employment exchange does not meet the
requirement of the said article of the

Constitution.

(Vide: Delhi Development Horticulture Employees
Union v. Delhi Admn.,
State of Haryana v. Piara Singh
,

Excise Supdt. v. K.B.N. Visweshwara Rao, Arun
Tewari.
v. Zila Mansavi Shikshak Sangh, Binod Kumar
Gupta v. Ram Ashray Mahoto, National Fertilizers Ltd.

v.
Somvir Singh, Telecom District Manager v. Keshab
Deb
,
State of Bihar v. Upendra Narayan Singh
and

State of M.P. v. Mohd. Ibrahim
).

36. 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
Articles 14
and
of the
Constitution. Such a course violates the
mandates of Articles 14 and 16 of the

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Constitution of India 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
Article 16

requires that every such appointment be made

by an open advertisement as to enable all
eligible persons to compete on merit."

15. No contrary view of this Court has been cited on

of
behalf of the respondent. Moreover, another Division
Bench of the same High Court has upheld termination
in similar matter as noted earlier against which S.L.P.
rt has been dismissed by this Court as mentioned earlier.

16. Accordingly, it has to be held that in the absence of
any advertisement or selection process, the

appointment of the respondent is not protected and
could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division

Bench erred in interfering with the same."

18. Applying the test in these cases, the

petitioners have failed to make out a case. The apex

Court has gone further while laying down the ratio that

even if a person has spent 14 or 20 years of service in

an institution, came to be appointed without due

process of law, is a back-door entry and cannot claim

regularization. The termination of such employee has

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been held valid even without issuing a notice, as

discussed hereinabove.

19. This question arose before the Division

.

Bench of this Court in a batch of LPAs and CWPs, lead

case of which is LPA No. 107 of 2014 titled Amit Attri

and others versus Anil Verma and others, and this

Court, after discussing the entire facts and law

of
applicable, laid down the same proposition of law. It is

apt to reproduce para 16 to 21 and 24 of the said
rt
judgment herein.

"16.It is worthwhile to record herein that the

petitioners have accepted the terms and conditions,
as contained in their appointment orders, one of
which stands reproduced supra. They have been

appointed purely on lecturer/hourly basis for one
hour lecturer basis, cannot claim regularization.

17.The apex Court in
Indu Shekhar Singh & Ors. vs.
State of U.P. & Ors
reported in 2006 AIR SCW 2582

in para 24 held as under:

"24. The State was making an offer to the Respondents

not in terms of any specific power under Rules, but in
exercise of its residuary power (assuming that the same
was available). The State, therefore, was within its right
to impose conditions. The Respondents exercised their
right of election. They could have accepted the said
offer or rejected the same. While making the said offer,
the State categorically stated that for the purpose of
fixation of seniority, they would not be obtaining the

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benefits of services rendered in U.P. Jal Nigam and
would be placed below in the cadre till the date of
absorption. The submission of Mr. Verma that for the
period they were with the Authority by way of
deputation, should have been considered towards

.

seniority cannot be accepted simply for the reason that

till they were absorbed, they continued to be in the
employment of the Jal Nigam. Furthermore, the said
condition imposed is backed by another condition that

the deputed employee who is seeking for absorption
shall be placed below the officers appointed in the
cadre till the date of absorption. The Respondent Nos.2

of
to 4 accepted the said offer without any demur on
3.9.87, 28.11.91 and 6.4.87 respectively.

25. They, therefore, exercised their right of option. Once
rt they obtained entry on the basis of election, they
cannot be allowed to turn round and contend that the
conditions are illegal. [See
R.N. Gosain vs. Yashpal Dhir

(
1992) 4 SCC 683, Ramankutty Guptan vs. Avara
(
1994)
2 SCC 642 and Bank of India & Ors. vs. O.P. Swarnakar &
Ors.
(2003) 2 SCC 721.] Further more, there is no
fundamental right in regard to the counting of the

services rendered in an autonomous body. The past
services can be taken into consideration only when the
Rules permit the same or where a special situation

exists, which would entitle the employee to obtain such
benefit of past service."

18.In University of Rajasthan and Anr. v. Prem
Lata Agarwal
alongwith other connected

matters reported in 2013 AIR SCW 989, the apex
Court in para 34 held as under:

"34. In view of the aforesaid, the irresistible conclusion is
that the continuance after the fixed duration goes to
the root of the matter. That apart, the teachers were
allowed to continue under certain compelling
circumstances and by interdiction by courts. Quite

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apart from the above, this Court had categorically
declined to accede to the prayer for regularization. In
such a situation, we are afraid that the reliance placed
by the High Court on paragraph 53 of the
pronouncement in Uma Devi, (AIR 2003 SC 1806) can

.

be said to be justified. In this regard, another aspect,

though an ancillary one, may be worth noting. Prem
Lata Agarwal and B.K. Joshi had retired on 31.3.2001
and 31.1.2002, and by no stretch of imagination,
Uma

Devi
(supra) lays down that the cases of any category
of appointees who had retired could be regularized.

We may repeat at the cost of repetition that the

of
protection carved out in paragraph 53 in
Uma Devi

(supra) could not be extended to the respondents
basically for three reasons, namely, (i) that the
rt continuance of appointment after the fixed duration
was null and void by operation of law; (ii) that the
respondent continued in the post by intervention of the

court; and (iii) that this Court had declined to regularize
their services in 1998."

19. In Chief Executive Officer, Pondichery

Khadi and Village Industries Board and Anr v. K.
Aroquia Radja and Ors reported in 2013 AIR SCW

1759, it was held as under:

"17. The learned Single Judge who heard the Writ
Petition No.3181 of 2008 and also the Division Bench
which heard the writ appeal could not have ignored

that the respondents were clearly told that their services
were co- terminus, and they will have no right to be
employed thereafter. Condition No.4 and 6 of the
earlier referred terms and condition are very clear in this
behalf. The respondents had taken the co-terminus
appointment with full understanding. It was not
permissible for them to challenge their dis- engagement
when the tenure of the Chairman was over........

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18. As stated by this Court in Umadevi (supra),
absorption, regularization or permanent continuance of
temporary, contractual, casual, daily-wage or adhoc
employees appointed/recruited and continued for long
in public employment dehors the constitutional scheme

.

of public employment is impermissible and violative of

Article 14
and
of the Constitution of India. As
recorded in paragraph 53 of the report in SCC, (para 44
of AIR 2006 SC 1806) this Court has allowed as a one

time measure, regularization of services of irregularly
appointed persons, provided they have worked for ten
years or more in duly sanctioned posts. That is also not

of
the case in the present matter."

20.In Hari Nandan Prasad and Anr. v.
rt
Employer I/R to Management of FCI and Anr.
reported in 2014 AIR SCW 1383 the apex Court in

para 34 held as under:

"34. On harmonious reading of the two judgments
discussed in detail above, we are of the opinion that

when there are posts available, in the absence of any
unfair labour practice the Labour Court would not give
direction for regularization only because a worker has

continued as daily wage worker/adhoc/temporary
worker for number of years. Further, if there are no posts

available, such a direction for regularization would be
impermissible. In the aforesaid circumstances giving of
direction to regularize such a person, only on the basis

of number of years put in by such a worker as daily
wager etc. may amount to backdoor entry into the
service which is an anathema to
Art.14
of the
Constitution. Further, such a direction would not be
given when the concerned worker does not meet the
eligibility requirement of the post in question as per the
Recruitment Rules. However, wherever it is found that
similarly situated workmen are regularized by the

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employer itself under some scheme or otherwise and
the workmen in question who have approached
Industrial/Labour Court are at par with them, direction
of regularization in such cases may be legally justified,
otherwise, non-regularization of the left over workers

.

itself would amount to invidious discrimination qua them

in such cases and would be violative of
Art.14
of the
Constitution. Thus, the Industrial adjudicator would be
achieving the equality by upholding
Art. 14
, rather than

violating this constitutional provision."

21. Applying the ratio of the aforesaid apex

of
Court's judgments to the facts and
circumstances of the present case, one comes
to rt an inescapable conclusion that the
candidates, who have got appointment/

engagement on hourly basis or seasonal basis,
cannot claim regularization, not to speak of
declaring him/them to have been appointed on

contract basis.

22-23..... ....... ...... .......

24. As discussed hereinabove, the petitioners

have no right for seeking a writ of mandamus to

declare them to be appointed on contract
basis. It is also well established that a person,

who is appointed without following due process
of law, cannot claim that he should be declared
to have been appointed in due course, in terms
of the judgment titled Secretary, State of
Karnataka and others vs. Uma Devi (3) and

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others (2006) 4 SCC1. It is apt to reproduce
para 45 of the said judgment herein:

"45. While directing that appointments, temporary or
casual, be regularized or made permanent, the courts
are swayed by the fact that the person concerned 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 in nature, is not aware of the nature of his
employment. He accepts the employment with open
eyes. It may be true that he is not in a position to

of
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
rt 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

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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 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

of
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
rt have to fail when tested on the touchstone of
constitutionality and equality of opportunity enshrined
in
Article 14
of the Constitution."

20. This judgment was questioned before the

apex Court by the medium of SLP but the same was

dismissed vide order dated 30.3.2015 in SLP No

9089-9090 of 2015 titled
Anil Verma & others versus

Amit Attri and others
etc.

21. Again, this question arose before the

Division Bench of this Court in a batch of LPAs and writ

petitions, lead case of which is CWP No. 6916 of 2011

and the same principles of law were laid down, though

the facts were slightly different.

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22. Applying the test in these writ petitions, the

petitioners have no case.

23. Having glance of the above discussion, the

.

writ petitions merit dismissal and are accordingly

dismissed, along with pending applications, if any.

(Mansoor Ahmad Mir)
Chief Justice.

of
December 23, 2015 (Tarlok Singh Chauhan)
(cm Thakur) Judge
rt

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