Allahabad High Court
Vijay Prakash Pradhan vs State Of U.P. Thr The Prin. Secy. P.W.D. ... on 10 February, 2017
Bench: Narayan Shukla, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R Case :- SERVICE BENCH No. - 998 of 1996 Petitioner :- Vijay Prakash Pradhan Respondent :- State Of U.P. Thr The Prin. Secy. P.W.D. Lko & Another Counsel for Petitioner :- Prashant Chandra,Agendra Sinha,Karunanidhi Yadav,Rajesh Tewari Counsel for Respondent :- C.S.C. Hon'ble Shri Narayan Shukla,J.
Hon'ble Sheo Kumar Singh-I,J.
(Delivered by Sheo Kumar Singh-I, J.)
1. Heard Mr. Agendra Sinha, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.
2. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner challenges the order dated 04.09.1996 passed by the Principle Secretary, Public Works Department, Lucknow, whereby the services of the petitioner were terminated.
The petitioner has further prayed for issue of a writ of mandamus commanding the respondents not to give effect to the order in question and to consider the regularization of the services of the petitioner and grant him promotion and other consequential benefits.
3. Admittedly, the petitioner was appointed on the post of Assistant Engineer on ad hoc basis in the year 1973. In the year 1979, the State Government promulgated the U.P. Regularization of Ad hoc Appointments (On posts within the purview of the Public Service Commission) Rules, 1979.
4. In the light of the provision of the regularization Rules, the selection committee was constituted to consider the regularization of those Assistant Engineers coming within the purview of regularization Rules, and after consideration the case of the petitioner was not found fit and the Committee did not recommend the name of the petitioner for regularization. Section 8 of the Regularization Rules, 1979, provides the termination of such candidates but before the services of the petitioner could be terminated, he filed a writ petition no.2642 of 1980 (Vijay Prakesh Pradhan Vs. State of U.P. & others.) before the Hon'ble Court and vide order dated 01.10.1980 following direction was issued:-
"not to terminate the services of the petitioner on the basis of the non-regularization of the services till further order"
5. Further, vide order dated 14.11.1980, a direction was issued by the Court not to terminate the services of the petitioner, if not already terminated. The services of the petitioner were continued in the light of the above order.
6. The writ petition no. 2642 of 1980 (Vijay Prakash Pradhan Vs. State of U.P. & others) along with other connected writ petitions were finally decided on 21.09.1994 with the following directions:-
" All these writ petitions are accordingly disposed of with the direction to the respondents to consider the regularization of service of those petitioners in whose cases the adverse entries, which were relied upon by the selection committee, were expunged and such a consideration has to be with reference to the date (23.02.1980) on which their claim for regularization was rejected. In those cases, where the entires were not communicated, their case will also be reconsidered with reference to the aforesaid date of 1980. As regards other petitioners, who were rightly refused regularization of their services in 1980, their cases may be considered as on now for regularization under the amended Rules in accordance with law. Till the question of regularization of service of these petitioners is decided, the petitioners may be permitted to work provided they are still working. In view of the facts and circumstances of the cases, there shall be no order as to costs. "
7. In obedience of the order of the Court, the Selection Committee consisting of Principal Secretary to Government of U.P., Public Works Department, Engineer-in-Chief, Public Works Department, Special Secretary to Government of U.P. Personnel Department, Special Secretary to Government of U.P., Education Department and Chief Engineer (Central Zone), Public Works Department, was constituted with the direction to consider the matter and report.
After considering the relevant records, the services of the petitioner was not found fit for regularization and in terms of provisions as contained in Section 8 of the above Rules, the services of the petitioner were terminated and the same was communicated to the petitioner vide letter dated 04.09.1996.
8. Then, the petitioner filed the present writ petition with the prayer challenging the aforesaid order and the petition was finally decided on 22.08.2012 with the following observations:-
" Considering the peculiar facts and circumstances of the case, we dispose of the writ petition with a direction to the opposite parties to pay the post retiral dues to the petitioner ignoring the order dated 04.09.1996."
The State of U.P. & Anr, filed Civil Appeal No. (S) 10814 of 2013 (State of U.P. & others Vs. Vijay Prakash Pradhan and others)before Hon'ble Apex Court and the court vide order dated 01.07.2014, set aside the order and the remitted matter back to this Court to be heard afresh for appropriate orders.
9. There is no dispute that the order dated 04.09.1996 purports to terminate the services of the petitioner who continued his service till 2009, under an interim order passed by this Court.
The learned counsel for the respondents has argued that the payment of post retiral dues is applicable only in the cases, where the services of the employee is regular.
10. The case of the petitioner having been considered for regularization was not found fit for any such benefits, as such there was no question of treating him to be in service on a substantive basis so as to entitle him to any retiral benefits. The question before the Court while deciding the matter and quashing the order to pay the retiral dues was not considered in the light of the fact that the question whether refusal of regularization by the Competent Authority was justified nor it was dealt as to whether the order of termination suffered from any illegality so as to warrant interference under Article 226 of the Constitution of India.
11. The learned counsel for the petitioner has submitted that the order passed by the High Court directing the payment of post retiral dues to the petitioner was on the basis of consensus of the parties and the petitioner was working under the direction of the Court, thus, the merit of the case was not required to be discussed.
12. Now, the question before this Court is as to whether the services of the petitioner could be regularized by order of this Court.
Admittedly, the petitioner was appointed on adhoc basis without following the procedure of appointment under the Rules. Post held by the petitioner comes within the purview of U.P. Public Service Commission and any appointment made without following the procedure, would be in violation of the Mandate Article 14 and 16 of the Constitution of India. The power to prescribe the condition of service can be exercised either by making Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The jurisdiction of the Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concerned 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 employees consistent with the requirement of Article 14 and 16. For the purposes of regularization, various per-requisite conditions are to be fulfilled, i.e., the temporary/as adhoc appointment of the employee should be in consonance with the statutory rules and it should not be a back-door entry. The service record of the employee should be satisfactory. There must be a sanctioned post against which the employee seeks regularization and on the said sanctioned post, there must be a vacancy.
13. It is further to be noted that the regularization should not be in contravention of the State Policy regarding reservation in favour of socially and educationally backward classes for which State has enacted any Statute or framed rules or issued any Government Orders. The question of regularization does not arise by merely working for any particular number of days, and no such ad hoc employee can derive any benefit for working for particular number of days or even for years under the interim order of the Court. More so, his appointment should be directly in accordance with law:-
(a) M.D. U.P. Land Development Corp. Vs. Amar Singh, AIR (2003) SC 2357.
(b) Pankaj Gupta Vs. State of J & K, (2004) SC 353.
(c) Dhampur Suger Mills Ltd. Vs. Bhola Singh, (2005) SC 470.
An appointment made in violation of the mandatory provisions of the statutes would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
14. In A. Umarani Vs. Registrar, Co-operative Societies & Ors, (2004) 7 SCC 112, a large number of employees of the Co-operative Societies in the State of Tamil Nadu had been appointed without notifying the vacancies through the Employment Exchange and without following the other mandatory provisions of the Act and the Rules framed thereunder relating to recruitment. With a view to condone the serious lapses on the part of the Co-operative Societies in making such appointment the State Government issued various orders from time to time for regularizing such appointments. The Supreme Court held that such orders could not have been passed with retrospective effect condoning the actions on the part of the Co-operative Societies which were in flagrant violation of the provisions of the Act and the Rules. While holding that the provisions of the Act and the Rules reflect the Legislative Recruitment Policy and the provisions were mandatory in nature, the Supreme Court after referring to a number of earlier decisions held that an appointment made in violation of the mandatory provisions of the statute would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. While deciding the said case, reliance was placed on its earlier judgment in State of H.P. Vs. Suresh Kumar Verma and another, (1996) 7 SCC 562.
15. The Supreme Court in R.N. Nanjundappa Vs. T. Thimmaiah & Anr. (1992) 2 SCR 799 held as under:-
" 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 regularized. Ratification or regularization 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. Regularization 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."
16. In Jawaharlal Nehru Technological University Vs. T. Sumalatha (Smt.) & Ors., (2003) 10 SCC 405, the Supreme Court rejected a similar contention stating:
"The learned counsel therefore contends that there is every justification for absorbing the concerned respondents on regular basis in recognition of their long satisfactory service. The learned counsel further contends that the adhoc arrangement to employ them on consolidated pay should not go on forever. The contention of the learned counsel cannot be sustained for more than one reason and we find no valid grounds to grant the relief of regularization. There is nothing on record to show that the concerned employees were appointed after following due procedure for selection. Apparently, they were picked and chosen by the University authorities to cater to the exigencies of work in the Nodal Centre"
17. In the State of Bihar & Ors. Vs. Project Uchcha Vidya Shikshak Sangh & Ors. (2006) 2 SCC 545, the Apex Court held that:-
" that question of regularization of services does not arise if the appointment has been made at initial stage in violation of the provisions of Article 14 and 16 of the Constitution of India. "
It has been further submitted by the respondent that if the appointment itself is in infraction of the Rules or if it is in violation of the provisions of the Constitution, the illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with the procedure or manner which does not go to the root of the appointment. Regularization 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 definece of rules or it may have the effect of setting at naught the rules.
18. While deciding the case of Secretary, State of Karnataka and Ors Vs. Umadevi and Ors reported in (2006) 4 SCC-1 it was held as under:-
There is another question as to why the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? The Court is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent the distinction between regularization and making permanent, was not emphasized here can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete.
19. In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava reported in (1993) ILLJ190 SC it was held as under:-
"when the appointment was purely ad hoc and on a contractual basis for a limited period, therefore, by expiry of the period, the right to remain in the post comes to an end."
20. In Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and Ors reported in (1994) II LLJ 977 Sci it was held as under:-
"that an ad hoc appointees/temporary employees engaged on ad hoc basis and paid on piece rate basis for certain clerical work and discontinued on completion of their task, were not entitled to reinstatement or regularization of their services even if their working period ranged from year to years."
24. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of this Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. This Court said: "It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
21. In State of Haryana Vs. Piara Singh and Others [1992) 3 SCR 826., the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. And concluded in paragraphs 45 to 50:
"The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, 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.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State "
22. In State of Himachal Pradesh Vs. Suresh Kumar Verma (1996 (1) SCR 972), a three Judge Bench of the Court held that a person appointed on daily wage basis was not an appointee to a post according to Rules. On his termination, on the project employing him coming to an end, the Court could not issue a direction to re-engage him in any other work or appoint him against existing vacancies. The Court said:
"It is settled law that having made rules of recruitment to various services under the State or to a class of posts under the State, the State is bound to follow the same and to have the selection of the candidates made as per recruitment rules and appointments shall be made accordingly. From the date of discharging the duties attached to the post the incumbent becomes a member of the services. Appointment on daily wage basis is not an appointment to a post according to the Rules."
Their Lordships cautioned that if directions are given to re-engage such persons in any other work or appoint them against existing vacancies, "the judicial process would become another mode of recruitment dehors the rules."
23. In Ashwani Kumar and others Vs. State of Bihar and others (1996 Supp. (10) SCR 120), the Court was considering the validity of confirmation of the irregularly employed. It was stated:
"So far as the question of confirmation of these employees whose entry was illegal and void, is concerned, it is to be noted that question of confirmation or regularization of an irregularly 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 unauthorized and is not against any sanctioned vacancy, question of regularizing the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularization or confirmation is given it would be an exercise in futility."
The Court further stated :
"In this connection it is pertinent to note that question of regularization in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period.
The Court noticed that in that case all constitutional requirements were thrown to the wind while making the appointments. It was stated:
"On the contrary all efforts were made to bypass the recruitment procedure known to law which resulted in clear violation of Articles 14 and 16(1) of the Constitution of India, both at the initial stage as well as at the stage of confirmation of these illegal entrants. The so called regularizations and confirmations could not be relied on as shields to cover up initial illegal and void actions or to perpetuate the corrupt methods by which these 6000 initial entrants were drafted in the scheme."
24. In Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115], the Court answered the question of ad hoc appointment and regularization and stated:-
"Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment" or "appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (See B.S. Minhas Vs. Indian Statistical Institute and others AIR 1984 SC 363)."
25. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
26. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. The acceptance of the argument on behalf of the petitioner would really negate the rights of the others conferred by Article 21 of the Constitution, assuming that we are in a position to hold that the right to employment is also a right coming within the purview of Article 21 of the Constitution. The argument that Article 23 of the Constitution is breached because the employment on daily wages amounts to forced labour, cannot be accepted. After all, the employees accepted the employment at their own volition and with eyes open as to the nature of their employment. The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances. It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality.
27. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. The Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
28. In the light of the fact it is within the domain of State-Government subject to limitation that the petitioner's case comes within the person duly qualified in duly sanctioned and vacated post and after following procedure of appointment and have continued to work but without intervention orders of the Court or Tribunal. The direction issued in Uma Devi case was one time measure for the employees coming under the purview of the provisions and should further to ensure that regular recruitments are undertaken to fill those vacant sanctioned post that requires to be fill up, in cases where temporary employees or daily wages employees are being now employed.
The Uma Devi case is an authoritative pronouncement for the preposition that the Court should not issue directions for absorption for regularized or permanent continues of temporary, contractual, daily wages or ad hoc employees, unless the recruitment itself was made regularly in terms of the Constitutional Scheme.
29. Learned counsel for the petitioner has submitted that the procedure for termination of services have not been followed. While arguing on behalf of the respondent it has been submitted that the State had constituted a Committee and after careful consideration and scrutiny of the matter, in the light of the materials available on records, a decision was taken that the case of the petitioner was not found fit to be considered for regularization.
30. On one hand when it is argued to appoint without following the procedure, it would lead to an indefinite conclusion that the authority can dismiss or terminate the services without holding any inquiry or following the principles of natural justice because as per Section 16 of the General Clauses Act 1897 power to appoint includes power to remove/suspend/ dismiss. But as no employee can be removed without following the procedure prescribed by law or in violation of the terms of his appointment, such a course would not be available to the Appointing Authority, therefore, the natural corollary of this is that the Appointing Authority cannot make any appointment in contravention of the statutory rules, which have to be in consonance with the scheme of our Constitution.
31. The principles to be adopted in the matter of public appointments have been formulated by the Court in M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 as under:
"(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back-door should go through that door. (5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
A similar view has been reiterated by the Constitution Bench in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, observing that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment". The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
32. In State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, the Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. The Court held as under:-
"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 noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the 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."
33. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore & Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491; Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213; B.R. Kapur v. State of Tamil Nadu & Anr., AIR 2001 SC 3435; The Mor Modern Co-operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana & Anr., AIR 2002 SC 2513; Arun Singh v. State of Bihar & Ors., AIR 2006 SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors., AIR 2010 SC 3515; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161).
34. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.
35. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by Court time and again is "backdoor appointments or appointment de hors the rules".
36. In State of U.P. & Ors. v. U.P. State Law Officers Association & Ors., AIR 1994 SC 1654, the Court while dealing with the back-door entries in public appointment observed as under:
"The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on the considerations other than merit. In the absence of guidelines, the appointment may be made purely on personal or political consideration and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back-door have to go by the same door....From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them."
37. In Som Raj & Ors. v. State of Haryana & Ors., AIR 1990 SC 1176, the Court held as under:
"The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. The rules provide the guidance for exercise of the discretion in making appointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection. The appointing authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority."
38. The similar question was raised before Hon'ble Supreme Court in Civil Appeal No. 36084 of 2016 (State of Jammu & Kashmir Vs. District Bar Association Bandipur) and was decided on 08.12.2016, reported in 2016 (12) scale, page 534. It was held as under :-
"All recruitment in matters of public employment must be made in accordance with prevailing Rules and orders. Thirdly, the date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision. An exercise to fill up vacancies must be undertaken in advance so as to ensure that there is no occasion to appoint persons on an ad hoc basis. Fourthly, while the High Court is an autonomous constitutional authority whose status cannot be undermined, it is equally necessary for it to strictly comply with the Rules framed in making recruitments. The judgment the importance of the High Court complying with statutory Rules in matters of recruitment. The judgment also emphasises the need to abide by the principles of equality and equal opportunity in Articles 14 and 16.
Regularization is not a source of recruitment nor is it intended to confer permanency upon appointments which have been made without following the due process envisaged by Articles 14 and 16 of the Constitution. Essentially a scheme for regularization, in order to be held to be legally valid, must be one which is aimed at validating certain irregular appointments which may have come to be made in genuine and legitimate administrative exigencies. In all such cases it may be left open to Courts to lift the veil to enquire whether the scheme is aimed at achieving the above objective and is a genuine attempt at validating irregular appointments. The State and its instrumentalities cannot be permitted to use this window to validate illegal appointments. The second rider which must necessarily be placed is that the principle as formulated above is not meant to create or invest in a temporary or ad hoc employee the right to seek a writ commanding the State to frame a scheme for regularization.
(iii) The High Court proceeded to issue directions for regularization without considering either the legal position enunciated in the judgments of the present Court and without considering the prevailing Rules and Regulations on the subject. It was thought appropriate and proper to set aside the order of the High Court which directs the regularization en masse of ad hoc employees.
39. The question which was raised before the Court are :-
(i) The right of employees seeking regularization on the strength of long and continuous work.
(ii) The direction in nature of mandamus issued by the Courts for regularization of employees under Article 226 of the Constitution.
40. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by the Court subject to condition that the appointment was regularized from among the duly qualified persons in duly sanctioned vacant post but the services should be without the intervention of orders of the courts or of tribunals. This is subjected to condition further that State should ensure that regular recruitment are undertaken to fill the vacant sanctioned posts, in cases where temporary employees or daily wagers are being employed. There should be transparency in the public appointment and what has been deprecated by the Court since long time and time again is "back-door appointments or appointments dehors the rules.
41. The second principle is that all recruitment in matters of public employment must be made in accordance with prevailing Rules and orders. In today's system, daily labourers and casual labourers have been conveniently introduced which are followed by attempts to regularise them at a subsequent stage. Therefore, most of the times the issue raised is about the procedure adopted for making appointments indicating an improper exercise of discretion even when the Rules specify a particular mode to be adopted. There can be no doubt that the employment whether of Class IV, Class III, Class II or any other class falls within the definition of "public employment". Such an employment, therefore, has to be made under Rules and under orders of the competent authority.
42. Thirdly, the date on which the vacancies are likely to occur are foreseeable with a reasonable amount of clarity and precision. An exercise to fill up vacancies must be undertaken in advance so as to ensure that there is no occasion to appoint persons on an ad hoc basis. In a democratic set-up like ours, which is governed by Rule of law, the supremacy of law is to be acknowledged and absence of arbitrariness has been consistently described as essence of Rule of law. Thus, the powers have to be canalised and not unbridled so as to breach the basic structure of the Constitution. Equality of opportunity in matters of employment being the constitutional mandate has always been observed. The unquestionable authority is always subject to the authority of the Constitution. The higher the dignitary, the more objectivity is expected to be observed. We do not say that powers should be curtailed. What we want to say is that the power can be exercised only to the width of the constitutional and legal limits. The date of retirement of every employee is well known in advance and therefore, the number of vacancies likely to occur in near future in a particular cadre is always known to the employer. Therefore, the exercise to fill up the vacancies at the earliest must start in advance to ensure that the selected person may join immediately after availability of the post, and hence, there may be no occasion to appoint any person on ad hoc basis for the reason that the problem of inducting the daily labourers who are ensured of a regular appointment subsequently has to be avoided and a fair procedure must be adopted giving equal opportunity to everyone.
43. The reply to the question regarding right of employees seeking regularization and direction in the nature of mandamus for regularization has been raised in case of State of Jammu & Kashmir Vs. District Bar Association Bandipur referred above and replied in negative and held to be not proper to the court to direct for regularization as well as issue any of direction in the nature of mandamus for regularization of employees whose services are temporary or ad hoc nature. On the basis that there is no vested right to seek regularization, the State and its instrumentalities cannot be permitted to use this window to validate illegal appointments.
44. It is true that the petitioner had worked for a long time, it is also true that he had been paid, paid wages but he did not hold any post. Therefore, the petitioner is not entitled to be paid pensionary benefits except in accordance with service Rule. Only because the petitioner had worked for a time as narrated in the petition, the same by itself would not be a ground for directing regularization for services, in view of the decision of Uma Devi Case.
45. Considering the above legal provisions it is a crystal clear that regularization is not a source of recruitment nor it is intended to confer permanency upon appointments which have been made without following a due process envisaged by Article 14 and 16 of the Constitution of India.
We have considered the rival contention of the parties and gone through the records and found that the appointment of the petitioner was not in accordance with appointment Rules (which was within the purview of the Public Service Commission) and the order dated 04.09.1996 was issued in light of the provisions as contained in Rule.
46. Thus, we have found no justification in quashing the impugned order dated 04.09.1996 or to issue any direction in the nature of mandamus for regularizing the services of the petitioner and grant him promotion or other consequential benefits as prayed for, consequently the petition deserves to be dismissed.
47. Accordingly, the writ petition is dismissed.
Order Date :- 10.02.2017 amit (Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)