Jharkhand High Court
Dr. Damyanti Sinku vs The State Of Jharkhand on 18 July, 2018
Equivalent citations: 2019 (1) AJR 583
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
1 L.P.A. No. 542 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.542 of 2017
Dr. Damyanti Sinku, D/o Late Jagmohan Sinku, permanent resident of
Village + P.O. - Khairpal, PS- Majhgaon, District - West Singhbhum
(Jharkhand)
... ... ... ... Appellant
Versus
1. The State of Jharkhand
2. The Chancellor of Universities through the Principal Secretary to
the Chancellor of Universities, Raj Bhawan, Ranchi
3. The Education Secretary, Human Resource Development
Department, Government of Jharkhand, Ranchi
4. The Director, High Education, Jharkhand
5. Secretary, Depart of Personnel, Administrative Reforms and
Rajbhasa, Government of Jharkhand, Ranchi
6. Ranchi University, Ranchi through the Registrar
7. Vice Chancellor, Ranchi University, Ranchi
8. State of Bihar through Secretary/HRD, Govt of Bihar, Patna
9. The Chairman, Bihar State University Service Commission
(Constituent Colleges), Gokul Marg, Boring Road, Patna
10. The Administrative Officer, Bihar State University Service
Commission, Boring Road, Patna
11. Jharkhand Public Service Commission through the Secretary,
Ranchi
12. The Chairman, Jharkhand Public Service Commission, Ranchi
13. The Bihar Public Service Commission through its Secretary, Patna
... ... ... ... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant: M/s. Rajendra Prasad Gupta, Advocate For the Respondents: M/s. K.M. Verma (GP1), Anil Kumar (Sr Adv), Anoop Kr Mehta, Lalan Kumar Singh, Ashutosh Kr Singh, Rajiv Anand (GA-IV), Amit Kr Sinha
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th 07/ Dated: 18 July, 2018 (Oral order) Per D.N. Patel, ACJ.
1) This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition being W.P. (S) No.2086 of 2016 was dismissed by the learned Single Judge vide judgment and order dated 21st September, 2017, whereby the prayer of this appellant (original petitioner) for regularization of her services was not accepted by the learned Single Judge and hence, the original petitioner has preferred the present Letters Patent Appeal.
2) Having heard learned counsel for both sides and looking to the 2 L.P.A. No. 542 of 2017 facts and circumstances of the case, it appears that this appellant claims to be working as a Lecturer with the respondents since 1992 in 'Ho' language, but, she was never regularized and hence, she preferred a writ petition before the Hon'ble Patna High Court being C.W.J.C. No.1728 of 2000(R).
3) The aforesaid writ petition was disposed of by this Court vide order dated 3rd January, 2002 with certain directions, to the Public Service Commission to recommend the names of the candidates, because it was alleged by this appellant in the aforesaid writ petition that public advertisement was given, interview was taken and Public Service Commission is not recommending names of the selected candidates.
4) Counsel for the appellant is unable to point out whether the name of this appellant was incorporated in the select list prepared by the Public Service Commission or Bihar State University (Constituent Colleges) Service Commission. Thus, there is nothing with this appellant that she was selected at all, for the post of Lecturer.
5) It appears from the facts of the case that now Jharkhand Public Service Commission has advertised for the posts of Lecturers in 'Ho' language. The said advertisement was bearing No.01/2007. Nothing has taken place at all in pursuance of this advertisement and if any select list has been prepared, the same has not been operated at all.
6) It ought to be kept in mind that even if any candidate has been selected, there is no vested right into the selected candidate to be appointed. It all depends upon the employers that how many persons to be appointed from the selected candidates. There may be several constraints with the employers like,
a) financial constraints;
b) infrastructural constrains;
c) sometimes secondary posts ought to have been
created which are not filled up, etc.
7) Thus, even if few candidates have been selected by the Public
Service Commission, they may not be appointed by the Government or by the employers.
8) It has been held by Hon'ble The Supreme Court in the case of Rai Shivendra Bahadur (Dr) v. Nalanda College, reported in 1962 Supp (2) SCR 144 at paragraph 5 as under :-
3 L.P.A. No. 542 of 2017"5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under Section 20 of the University of Bihar Act have or have not the force of law and whether a writ under Article 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to court and ask for a writ to issue. It is therefore not necessary to go into any other question."
(Emphasis supplied)
9) It has also been held by Hon'ble The Supreme court in the case of State of Haryana v. Subash Chander Marwaha, reported in (1974) 3 SCC 220 at paragraphs 10 and 11 as under:
"10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a 4 L.P.A. No. 542 of 2017 candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived. "
(Emphassis supplied)
10) It has further been held by Hon'ble The Supreme court in the case of Shankarsan Dash v. Union of India , reported in (1991) 3 SCC 47, at paragraphs 7 to 9 as under :-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to 5 L.P.A. No. 542 of 2017 be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.
8. In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had "somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies". It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatendra Kumar v. State of Punjab, was turned down holding that it 6 L.P.A. No. 542 of 2017 was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana, was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.
9. Mr Goswami appearing in support of the appeal has contended that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up all the vacancies until none remained vacant. Reference was made to Rule 4 of the Indian Police Service (Cadre) Rules, 1954, Rules 3, 4, 6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and Regulations 2(1)(a), 2(1)(c), 8 and 13 of the Indian Police Service (Appointment by Competitive Examination) Regulations, 1965. We do not think any of these rules comes to the aid of the appellant. Rule 3 of the Cadre Rules directs constitution of separate cadres for States or group of States, and Rule 4 empowers the Central Government to determine the strength in consultation with the State 7 L.P.A. No. 542 of 2017 Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment Rules deals with the constitution of the Service, and Rule 4 the method of recruitment. Rules 6 and 7 give further details in this regard. The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position with respect to the Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes that the candidates would be considered for appointment to the available vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by mere inclusion of his name in the list. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules.
(Emphasis supplied)
11) It has further been held by Hon'ble The Supreme Court in the case of Punjab State Electricity Board and others v. Malkiat Singh reported in (2005) 9 SCC 22 at paragraph 4 as under: -
"4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of Indi which reads: (SCC pp. 50-51) "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which 8 L.P.A. No. 542 of 2017 cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab."
(Emphasis supplied)
12) It has also been held by the Hon'ble The Supreme Court in the case of State of Orissa v. Rajkishore Nanda reported in (2010) 6 SCC 777 at paragraphs 14 to 18 as under:-
"14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India held that appearance of the name of a candidate in the select list does not give him a right of appointment . Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination.9 L.P.A. No. 542 of 2017
16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage.
17. The instant case is required to be examined in view of the aforesaid settled legal proposition. The 1985 Rules provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. The select list prepared so also is valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that the number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, a select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list.
18. It is the exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments. Bona fide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed. The courts/tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possesses the requisite eligibility."
(Emphasis supplied)
13) It appears from the facts of the present case that this appellant is unable to point out that even in pursuance of the public advertisement 10 L.P.A. No. 542 of 2017 given by the Jharkhand Public Service Commission being Advertisement No.01/2007, this appellant was at all selected by the Public Service Commission.
14) Thus, neither in pursuance of the earlier advertisement given by the erstwhile State of Bihar, nor by the Jharkhand Public Service Commission, this appellant was ever selected on the post of Lecturer in the subject of 'Ho'.
15) It further appears from the facts of the case that thereafter another public advertisement was issued bearing No.02/2007 (counsel for the respondents-State is submitting that this advertisement was of the year 2017).
16) In pursuance of this public advertisement also, nothing has taken place further, because in the State of Jharkhand, several errors are being committed by the high-ranking administrative officers and this happens repeatedly. Time & again, they have to amend the public advertisements, or, they are cancelling the public advertisements. This is a routine phenomenon in the State of Jharkhand and this public advertisement is not an exception to that.
17) Thus, in pursuance of the third advertisement bearing No.02/2007 also, this appellant has never been selected by the Public Service Commission.
18) In this set of circumstances, there is no right vested in this appellant for getting regularized of her services. A backdoor entrant into public service cannot be regularized. The backdoor entrant has to go out by the same entry. Some people are more influential than intelligent. For an appointment in a public post, there ought to be a public advertisement and the public at large ought to be given a chance to compete with each others. If this element is lacking, such candidate cannot get any appointment and if they got such employment by influence, they have to go home, or they should wait till they are legally selected by the Public Service Commission or such other institutions. Their services also cannot be regularized howsoever lengthy the period of temporary, casual or illegal service may be.
19) It has been held by Hon'ble The Supreme Court in the case of Mohd. Ashif v. State of Bihar reported in (2010) 5 SCC 475 at paragraphs 13 and 14 as under:
11 L.P.A. No. 542 of 2017"13. Applying the test laid down by this Court in Umadevi (3) case and the cases referred to above, to the case at hand, there is no gainsaying that the appointments of the appellants as Primary Health Workers were totally illegal and violative of Articles 14 and 16 of the Constitution which guarantee equality of opportunity to all those who were otherwise eligible for such appointments. The Chief Medical Officer who had made the appointments was not vested with the power to do so nor were the claims of other candidates eligible for appointments against the posts to which the appellants were appointed, considered. Surprisingly, the appointments had come by way of absorption of the appellants who were working as Voluntary Health Workers on a monthly honorarium of Rs 50 only.
14. The High Court has, in our opinion, correctly held that there was no cadre of Voluntary Health Workers who were working on an honorarium in State-run dispensaries. The very nature of the appointment given to the appellants as Voluntary Health Workers was honorary in nature which entitled them to the payment of not more than Rs 50 per month. It is difficult to appreciate how the Chief Medical Officer could have regularised/absorbed such Voluntary Health Workers doing honorary service against the post of Primary Health Workers which carried a regular pay scale and which could be filled only in accordance with the procedure prescribed for that purpose. The appointment of the appellants against the said posts was thus manifestly illegal and wholly undeserved to say the least. Inasmuch as these appointments came to be cancelled pursuant to the said directions no matter nearly a decade and a half later the termination could not be said to be illegal so as to warrant interference of a writ court for reinstatement of those illegally appointed. The High Court was, in that view of the matter, justified in declining interference with the order of cancellation and dismissing the writ petitions.
(Emphasis supplied)
20) It has also been held by Hon'ble The Supreme Court in the case of State of Bihar v. Chandrashwar Pathak reported in (2014) 13 SCC 232 at paragraphs 10 to 13 as under:-12 L.P.A. No. 542 of 2017
"10. The order of appointment, in the present case, is as follows:
"In the light of the order passed by the Inspector General of Police, Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86 F3 Shri Chandeshwar Pathak, s/o Shri Devnarayam Pathak of Village Haraji, PO Haraji, PS Dimbara, District Chhapra was appointed as Constable temporarily from 14-1-1988 afternoon on the condition that his previous character found satisfactory and as and when necessary, his service shall be terminated without assigning any reason or show cause. His pay scale shall be Rs 425-10,565 EB-10-605 with the basic pay of Rs 425. He has been allotted CT No. 390."
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.
11. In State of Orissa v. Mamata Mohanty, it was observed as under: (SCC pp. 451-52, paras 35-36) "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 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 eligible candidates from the open market by advertising the vacancies in newspapers having wide 13 L.P.A. No. 542 of 2017 circulation or by announcement in radio 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 Supt. 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, Deptt. of Telecommunications v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State of M.P. v. Mohd. Abrahim.)
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 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."
12. No contrary view of this Court has been cited on behalf of the respondent. Moreover, another Division Bench of the same High Court has upheld termination in similar matter as noted earlier against which SLP has been dismissed by this Court as mentioned earlier.
13. Accordingly, it has to be held that in the absence of any 14 L.P.A. No. 542 of 2017 advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned Single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same."
(Emphasis supplied)
21) It has further been held by Hon'ble The Supreme Court in the case of Renu v. District & Sessions Judge reported in (2014) 14 SCC 50 at paragraphs 6 to 13 as under:-
"6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution.
7. In I.R. Coelho v. State of T.N., the doctrine of basic features has been explained by this Court as under: (SCC p. 108, para 141) "141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III."
8. As Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Admn., State of Haryana v. Piara Singh, Prabhat Kumar Sharma v. State of U.P., J.A.S. Inter College v. State of U.P., M.P. Housing Board v. Manoj Shrivastava, M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey and State of M.P. v. Sandhya Tomar.
9. In Excise Supt. v. K.B.N. Visweshwara Rao, a larger Bench of this Court reconsidered its earlier judgment in Union of India v. N. Hargopal, wherein it had been held that insistence on recruitment through employment exchanges advances rather than restricts the 15 L.P.A. No. 542 of 2017 rights guaranteed by Articles 14 and 16 of the Constitution. However, due to the possibility of non-sponsoring of names by the employment exchange, this Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the Constitution and 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 eligible candidates from open market as merely calling the names from the employment exchange does not meet the requirement of the said articles of the Constitution. The Court further observed: (K.B.N. Visweshwara Rao case, SCC p. 218 para 6) "6. ... In addition, the appropriate department ... should call for the names by publication in the newspapers having wider circulation and also display on their office notice ... and employment news bulletins; and then consider the cases of all candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
(emphasis supplied) (See also Arun Tewari v. Zila Mansavi Shikshak Sangh and Kishore K. Pati v. District Inspector of Schools, Midnapore.)
10. In Suresh Kumar v. State of Haryana this Court upheld the judgment of the Punjab and Haryana High Court wherein 1600 appointments made in the Police Department without advertisement stood quashed though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.
11. In UPSC v. Girish Jayanti Lal Vaghela this Court held: (SCC p. 490, para 12) "12. ... The appointment to any post under the State can only be made after a proper advertisement has 16 L.P.A. No. 542 of 2017 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 ... 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."
(emphasis supplied)
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav as under: (SCC pp. 274-75, para 24) "(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 17 L.P.A. No. 542 of 2017 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."
13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3), 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.
(Emphasis supplied)
22) In view of the aforesaid decisions, backdoor entrants i.e. if any employee has got public employment without any public advertisement, or, without following the rules of recruitment; they are not even entitled for salary. At the most, they are entitled for the damages, for which they can file a suit in the competent trial Court, but, it will not be a salary. The word 'salary' goes with the legally appointed employees. Salary cannot be paid to the illegal appointees. It has become a fashion that those who are holding the high-ranking administrative position, they are appointing illegally, their kith and kin, who are more influential and those who have never been selected in pursuance of any public advertisement. Their services cannot be even continued by the respondents. The way in which the appointment was given, in the same fashion, they can be sent back to 18 L.P.A. No. 542 of 2017 their homes. There is no need of any enquiry or any notice. It is now high time for one and all not to protect the services of the backdoor entrants. These aspects of the matter have been properly appreciated by the learned Single Judge while deciding W.P. (S) No.2086 of 2016 vide judgment and order dated 21st September, 2017 and we see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.
(D. N. Patel, ACJ)
Manoj/ (Amitav K. Gupta, J)