Allahabad High Court
Lakshman Singh & Ors. vs State Of U.P. Thru. Prin. Secy. ... on 21 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1080
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on : 27.01.2020 Delievered on : 21.05.2020 In Chamber Case :- SERVICE SINGLE No. - 9184 of 2018 Petitioner :- Lakshman Singh & Ors. Respondent :- State Of U.P. Thru. Prin. Secy. Law/Legal Remembrancer & Ors Counsel for Petitioner :- Gaurav Mehrotra,Anamita Srivastava,Santosh Kumar Tripathi,Shreya Prakash Counsel for Respondent :- C.S.C. CONNECTED WITH Case :- SERVICE SINGLE No. - 883 of 2018 Petitioner :- Ravi Shankar And Another Respondent :- State Of U.P. Thru Prin.Secy.Law/Legal Remembrancer & Ors. Counsel for Petitioner :- Sushil Kumar Singh,Anand Mani Tripathi,Ram Raj Ojha,S.S.Rajwat Counsel for Respondent :- C.S.C. & Case :- SERVICE SINGLE No. - 3402 of 2018 Petitioner :- Uday Bhan Singh And 5 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Law/Legal Remembrancer Lko.&Ors Counsel for Petitioner :- Sushil Kumar Singh,Anamika Srivastava,Shailendra Singh Rajawat,Vinod Kumar Pandey Counsel for Respondent :- C.S.C. & Case :- SERVICE SINGLE No. - 3047 of 2018 Petitioner :- Atul Awasthi Respondent :- State Of U.P. Thru Prin.Secy.Law/Legal Remembrancer Lko.&Ors Counsel for Petitioner :- Sushil Kumar Singh,R.P.Shukla Counsel for Respondent :- C.S.C. & Case :- SERVICE SINGLE No. - 3880 of 2018 Petitioner :- Vikash Mishra & 5 Others Respondent :- State Of U.P. Thru. Prin.Secy.,Law/Legal Remembrancer & Ors. Counsel for Petitioner :- Gaurav Mehrotra,Anand Mani Tripathi,Pallavi Vatsala,Santosh Kr. Tripathi,Shailendra Singh Rajawat Counsel for Respondent :- C.S.C. & Case :- SERVICE SINGLE No. - 4634 of 2018 Petitioner :- Meenu Shukla And 3 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Law/Legal Remembrancer & Ors. Counsel for Petitioner :- Om Prakash Yadav,Anamika Srivastava,Anand Mani Tripathi,Harsh Vardhan Mehrotra,Santosh Kumar Tripathi,Shailendra Singh Rajawat Counsel for Respondent :- C.S.C. & Case :- SERVICE SINGLE No. - 4520 of 2017 Petitioner :- Atul Awasthi Respondent :- State Of U.P. Thru Prin.Secy.Law/Legal Remebrancer Lko.& Ors Counsel for Petitioner :- Manjive Shukla,Sushil Kumar Singh Counsel for Respondent :- C.S.C. & Case :- SERVICE SINGLE No. - 5198 of 2017 Petitioner :- Ardhendu Kushwaha And 3 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Law Sectt. Lucknow & Another Counsel for Petitioner :- Vinod Kumar Pandey,Vikrant Pandey Counsel for Respondent :- C.S.C. . Hon'ble Chandra Dhari Singh,J.
1. Since similar question of facts and law are involved in the bunch of writ petitions, therefore, they are being decided by this common order.
2. By means of bunch of writ petitions the petitioners have challenged the order passed by learned Advocate General vide which appointment of the petitioners have been cancelled and their services have been terminated with immediate effect.
3. In Writ Petition Nos.883 (SS) of 2019, 3047 (SS) of 2018, 3402 (SS) of 2018, 3880 (SS) of 2018 & 4634 (SS) of 2018, the petitioners have challenged order dated 22.12.2017 by means of which appointment order of the petitioners has been cancelled and their services have been terminated with immediate effect.
4. The background facts in which Writ Petition No.9184 (SS) of 2018 has been filed are briefly stated as under:-
(i) Petitioners are Class - IV employees and were working on the post of Peon (Anusewak) in the office of Chief Standing Counsel of High Court of Judicature at Allahabad as well as Lucknow. While Petitioners No.1 to 4 were working on the post of Peon (Anusewak) in the office of Chief Standing Counsel at Lucknow and Petitioners No. 5 & 6 were working as Peon (Anusewak) in the office of Chief Standing Counsel at Allahabad. Petitioners No.1, 3 & 5 belong to General Category, Petitioners Nos. 2 & 4 belong to Other Backward Category and Petitioner No.6 belongs to Scheduled Caste Category.
(ii) In year 2013, in the office of Respondent No.2 and State Law Officers (Establishment), several posts in Class - III category namely Stenographers, Assistant Review Officers and Computer Assistants as well as posts of Class - IV employees were lying vacant. Those posts were duly sanctioned in accordance with the procedure prescribed in the statute. Vide order/letter dated 18.06.2013 issued by Special Secretary (Law), Government of U.P. to Chief Standing Counsel of this Court at Allahabad and Lucknow, it was requested to make available the proposal to the State Government for appointment of Stenographers and other staffs in the office of Chief Standing Counsel in compliance of judgment and order dated 09.04.2013 passed in Writ Petition No. 1 (S/B) of 2013 (State of U.P. & Anr. Vs. Dallaram & Anr.). In pursuance of the said letter, the decision to fill up the aforesaid vacancies was taken by the then learned Advocate General.
(iii) In another order dated 25.11.2013 passed in Writ Petition No.7155 (MB) of 2008 (C/M Dhirja Devi Ram Adhar Kanya Inter Colleve V. State of U.P. & Ors.), the Division Bench of this Court passed the following orders:-
"Earlier, this Court had directed to send the record of listed cases to different counsel according to allocation of work.
Learned Standing Counsel pointed out that the records of the cases listed are not being sent by the CSC Office to them.
Today, the record of this case has not been sent by the CSC office, due to which the learned Standing Counsel is unable to argue the case.
Learned counsel for the petitioner submits that since last two dates, the record of this case is not made available with the learned Standing Counsel. Hence, arguments could not be held.
There appears mismanagement of the CSC office.
List/put up on 28.11.2013. On the said date, Principal Secretary (Law) shall appear in person before this Court to show cause as to why an adverse entry may not be entered in his character roll for failing to administer the office of Chief Standing Counsel and also for failing of non compliance of earlier direction issued by this Court which also amounts to a contempt. He shall also a show cause as to why a contempt proceeding may not be initiated against him for non complying with the order passed by this Court in not providing requisite infrastructure and assistance to this Court.
Principal Secretary (Law) be informed forthwith by learned Standing Counsel as well as Register of this Court for compliance.
Learned Standing Counsel shall also produce the copy of order passed earlier by the Division Bench of this Court by which certain directions were issued to the authority concerned on the date fixed.
List on 27.11.2013."
(iv) Pursuant to the aforesaid order(s), the Division Bench expressed annoyance against the State Government regarding non-providing of requisite infrastructure in the Chief Standing Counsel office. Thereafter, a decision was taken by respondent no.2/Advocate General, Uttar Pradesh to fill up the vacant posts in the Chief Standing Counsel office and for the said purpose, Notice No.737(3) dated 10.12.2013 was issued by Officer on Special Duty (O.S.D) in the office of respondent no.2 inviting applications from the eligible candidates for filling up vacancies on those posts on ad-hoc basis. The said notice was duly circulated and the same was also pasted on the notice boards in the office of Chief Standing Counsel of this Court at Allahabad and Lucknow.
(v) As per the aforesaid notice, last date for submitting the applications was 30.04.2014. The petitioners came to know about the aforesaid vacancy in the office of respondent no.2 and State Law Officers (Establishment). They applied for the said posts as they were eligible.
(vi) A three members selection committee was constituted for appointment on Class - IV posts of Peon (Anusewak) headed by the then Government Advocate at Lucknow. The other members were the then Chief Standing Counsel at Lucknow and the Standing Counsel at Lucknow. An interview took place on 18.06.2014 for the posts of Peon (Anusewak) and the petitioners succeeded in the said interview. After completing the interview, a select list was prepared and the selection committee sent its report/recommendation on 19.06.2014 to respondent no.2 for appointment of selected candidates.
(vii) On the basis of the aforesaid select list, vide office order dated 20.06.2014, a composite appointment letter on the post of Peon (Anusewak) was issued to the petitioners.
(viii) In furtherance of the aforesaid appointment order/letter, petitioners no.1 to 4 served their joining on the same day i.e. 20.06.2014 at the office of Chief Standing Counsel at Lucknow, petitioner no.5 served his joining on 01.07.2014 and petitioner no.6 served his joining on 20.06.2014 at the office of Chief Standing Counsel at Lucknow. Since then they were performing their duties till issuance of the impugned order dated 22.03.2018.
5. In Writ Petitions No.4520 (SS) of 2017 and Writ Petition No.5198 (SS) of 2017, the petitioners have prayed for a writ in the nature of mandamus directing the respondents to release the petitioner's salary as well as pay arrears of salary w.e.f. July, 2014.
6. The Government of U.P. in pursuance of provisions of Clause (3) of Article 348 of Constitution of India notified the U.P. Advocate General and Law Officers Establishment Service rules, 2009 (hereinafter referred as ''2009 Rules') on 11.11.2009. On 15.12.2009, the 2009 Rules was amended making amendments in Rule 25(2) and in appendix. The second amendment was made in rules 15 & 16 of 2009 Rules on 19.01.2010. By way of third amendment in 2009 Rules, Rule 31 was inserted on 10.02.2010.
7. In the year 2014, a complaint was made by an Additional Advocate General at Allahabad questioning the appointments of Assistant Review Officers. On the said complaint, the Chief Secretary, Government of U.P. wrote a letter dated 26.06.2014 to Principal Secretary (Law), Government of U.P. instructing therein that there is ban on appointments, hence appointments of Assistant Review Officers is against the appointment policy of the State. The said letter was modified vide order dated 15.07.2014 by the Chief Secretary, Government of U.P. It is also alleged in the instant proceedings that the services of the employees which were appointed on ad-hoc basis were regularised vide order dated 28.07.2014. An inquiry was instituted vide order dated 11.08.2014 issued by Special Secretary, Department of Law, Government of U.P. to inquire about the legality and validity of order dated 28.07.2014.
8. On 13.04.2015, the inquiry report was submitted by Government Advocate, Lucknow stating therein that appointments made by respondent no.2 were proper and valid, and were in accordance with law. It was also stated in the said inquiry report that order of regularisation of the employees of Class - III and Class - IV posts issued by respondent no.2 was also valid and in accordance with law.
9. Further, another inquiry report dated 23.05.2016 was submitted by Additional Advocate General, relevant portion of which is quoted hereinbelow for ready reference:-
"....................
After looking into all the documents on record and giving a thoughtful consideration, do not find any discrepancy in either the selection process or in respect of any laxity in the educational qualifications or eligibility criterion and while making the appointments due care and caution was taken by both the Selection Committee and by the then Advocate General, U.P. I am of the opinion that since no regular appointment had been made since the year 2010 and a large number of vacancies were available in the Office of the Advocate General both at Lucknow and Allahabad and looking to the interest of work, the then Advocate General had taken a decision to make appointment on different posts of Class III and Class IV category.
At this juncture, I would also like to mention that a bench comprising of Hon'ble Mr. Justice D.P. Singh and Hon'ble Mr. Justice Arvind Kumar Tripathi (II) in the case of State of U.P. And another Versus Dalla Ram and another (Writ Petition No.1/SB/2013), had strongly recommended to make appointments in the office of Advocate General, U.P., so that it functions in a proper and better manner and that being the necessity and need of the hour, the Advocate General thought it proper to make adhoc appointments at that point of time. It will also be not out of place if it is mentioned here that all the incumbents whose adhoc appointments were made in the year 2014 have been working since then but are not getting their salary and emoluments which is not in accordance with Constitutional requirements.
Hence, I conclude by saying that since appointments have been done in accordance with law and due to the exigencies of work interest and also in the light of the directions given by the Hon'ble High Court in the case of State of U.P. And another Versus Dalla Ram and another (Writ Petition No.1/SB/2013) and also because the incumbents on the post in question have been working since 2014, the appointments made may be treated as legal and salary may be paid to the persons who are still working."
10. Supplementary report/reply dated 12.09.2016 was also submitted, relevant portion of which is quoted hereinbelow:-
".......................
In view of the judgment and order dated 25.11.2013 passed by the Hon'ble Court and looking into the exigencies of work selection and appointment was carried out and while making the aforesaid selection and appointment, due process was adopted as to why the proposal was not send to the government for relaxation in terms of the government order dated 15.03.2012 was not taken is not within my knowledge. Moreover, I have been asked to submit a report in this regard vide order dated 26.10.2015 specially provide that I should give an enquiry report in respect of the appointment made of the Ex-Advocate General Sri Vinay Chandra Mishra, in the office of Advocate General U.P./State Law Officers on the post of 6 Assistant Review Officers, 7 Stenographers and 6 Class IV employees.
Dear Sir, since the queries now raised are not a part of the original reference order on which I had submitted by Enquiry report, these queries are of no relevance.
(ii) That the order passed in the case of State of U.P. and others Vs. Dalla Ram and others related to present issue but since the Hon'ble Court in taken to the office that there was shortage of staff in the office of Advocate General, U.P./State Law Officers and he should issue certain directions and the Advocate General has acted in the light of the aforesaid order dated 25.11.2013 passed by the Hon'ble High Court and no Special Appeal has been preferred against the aforesaid judgment, hence the judgment and order passed by the Hon'ble High Court is of much relevance and needs to be implemented.
(iii) Third query as to why the advertisement was not issued for selection/appointment again cannot be clarified at my end as I was never a part of the selection committee, as it is not a part of the reference order dated 26.10.2015 by which I was appointed as the inquiry officer to enquire into the appointment made by the then Advocate General, U.P. On the post of Assistant Review Officer, Stenographers and Class IV employees. However, it may be clarified that the selection process undertaken at the end of the then Advocate General O.P. Is not taking any as I had already stated in my earlier enquiry report dated 23.05.2016."
11. Vide order dated 22.12.2017, respondent no.2 terminated the services of the petitioners. Vide order dated 03.02.2018, respondent no.2 modified the said termination order dated 22.12.2017 of the petitioners. Finally, order dated 22.03.2018 was passed terminating the services of the petitioners on the basis that appointments of the petitioners were contrary to the provisions of 2009 Rules and their services were regularised in contravention of the provisions of the said rules.
12. Mr. Gaurav Mehrotra, learned counsel appearing for the petitioners in Writ Petition No.9184 (SS) of 2018 has submitted that the appointing authority i.e. Advocate General was fully justified in making appointment on Class - III and Class - IV posts by merely resorting to the procedure prescribed in Sub-Rule 2 of Rule 14 of 2009 Rules. It is submitted that the situation occurred due to the decision and observation made by Division Bench vide order dated 09.04.2013 (supra) vide which the Division Bench expressed their concern on the functioning of the office of Advocate General of the State and submitted that due to non-availability of the sufficient staff, the Advocate General as well as Chief Standing Counsel(s) are not able to get the paper-book prepared, therefore, they were not able to assist the Court properly.
13. It is further submitted that in view of the observations, as mentioned above, the Advocate General appointed the petitioners on their respective posts after following the procedure prescribed in 2009 Rules. It is also submitted that a selection committee was constituted for selection of the petitioners on their respective posts. Examination was conducted and the committee recommended the names of the eligible candidates for appointment as they were found eligible. On the said recommendation, select list was prepared and as per the said list, the petitioners were appointed on their respective posts.
14. The learned counsel for the petitioners has submitted that when the complaint regarding appointment of the petitioners were received, an inquiry committee was constituted and inquiry was conducted, and a report was submitted by the inquiry officer on 13.04.2015. In the said report it has been mentioned that statements of all employees were recorded by the enquiry officer. Ultimately, the euquiry officer recorded that he also had a telephonic conversation with the then Advocate General, during whose tenure the appointments in question were made. The then Advocate General gave his explanation that ad-hoc appointments were made in exigency of service on account of directions issued by this Hon'ble Court as also keeping in view the extreme shortage of Class - III and Class - IV employees in the office of Advocate General and State Law Officers. The appointments were made after getting the notice pasted on the notice board and after constituting selection committee for selection, on whose recommendation the selections were made. Ultimately, the enquiry officer opined that stricto sensu would apply only in regular appointments and not in ad-hoc appointments. The enquiry officer further opined that the Hon'ble Court had issued direction to the State Government to sanction appropriate posts of Class - III and Class - IV employees which were never sanctioned, thus in view of the shortage of employees, excessive work load and directions of this Hon'ble Court, as an emergent situation, the then Advocate General made appointments on ad-hoc basis. Even, Chief Secretary modified his earlier letter on 15.07.2014 making it clear that the ad-hoc appointments made by the then Advocate General were in accordance with rules.
15. The learned counsel has further submitted that the Advocate General vide its Letter No.56 PS AG UP-15 dated 14.04.2015 categorically opined that "from the records it is clear that all the persons who were appointed possessed requisite qualifications and they have been discharging their duties for about one year and as far as their performance is good, they may be allowed to continue till regular selection is made in accordance with law".
16. Thereafter, second inquiry was directed by the State Government regarding the appointment of the petitioners which was conducted by Additional Advocate General, Government of U.P., Lucknow. The second inquiry report dated 23.05.2016 was submitted by the inquiry officer i.e. Additional Advocate General. The inquiry officer during the course of inquiry went through the records in great detail and found that several posts including the posts of Class - IV employee duly sanctioned, were vacant in the office of Advocate General and State Law Offices, thus a decision was taken by the then Advocate General keeping in mind the interest of the institution and the aforesaid posts were filled on ad-hoc basis for which notice was circulated on 10.12.2013. Large number of persons applied for the same. It was also mentioned in the said inquiry report that the selection committee recommended the names of the petitioners, on being found eligible, for appointment on their respective posts.
17. It is specifically mentioned in the second inquiry report that on the basis of the documents, the inquiry officer found that there was no discrepancy either in the selection process or laxity in educational qualifications or eligibility criteria, thus he concluded that appointments had been done in accordance with law and in exigencies of work interest and also in light of directions of this Court.
18. It is further submitted that the petitioners, who were appointed on ad-hoc basis, were appointed on their respective posts due to exigency of service by the appointing authority exercising its discretion in view of the emergent situation which had emerged on account of directions issued by this Hon'ble Court vide orders dated 09.04.2013 and 25.11.2013 as also on account of acute shortage of staff in the office of Advocate General and State Law Officers. Though the notice could not be advertised in the news paper and employment exchange, but the notice was duly circulated by pasting the same on the notice board as prescribed in Rule 14(ii) of 2009 Rules. In such circumstances, appointment of the petitioners on ad-hoc basis cannot be faulted with or is not contrary to the provisions.
19. Learned counsel has fairly submitted that the petitioners had been working on ad-hoc basis on their respective posts for last several years after facing a proper selection process as per rules. There is also no allegation that the petitioners are not qualified or eligible candidates for their respective posts. The only allegation is that the selection was made in contravention of certain provisions of 2009 Rules.
20. It is also submitted that the procedure prescribed for selection was completely followed with and from the date of appointment till issuance of the impugned termination order, the petitioners continuously discharged their duties even thereafter there is deeming legal fiction of continuance of service of the petitioners on their respective posts in view of interim order dated 30.03.2018 passed by this Court in Writ Petition No.9184 (SS) of 2018.
21. Learned counsel for the petitioners has submitted that it is not the case of the respondents that the petitioners have committed any kind of forgery or misrepresentation for procuring the job or that the petitioners do not possess the requisite qualification for Class - III and Class - IV posts. On the contrary, the appointing authority after going through the records has explicitly held that the petitioners possess the requisite qualifications, therefore, the petitioners undoubtedly deserve to be continued on their respective posts at least till regular selections are made in accordance with 2009 Rules.
22. Learned counsel for the petitioners in their respective other writ petitions have adopted the arguments advanced by Shri Gaurav Mehrotra, learned counsel appearing for Writ Petition No.9184 (SS) of 2018.
23. Per contra, Mr. H.P. Srivastava, learned Additional Chief Standing Counsel appearing for opposite parties no.2 to 4 has vehemently opposed the submissions advanced by learned counsel for the petitioners and submitted that the appointment was made on ad-hoc basis and the same is nothing but a fortuitous appointment, which does not create any right to the incumbents appointed on ad-hoc basis. It is submitted that they do not have any right to continue in service and their services can be terminated at any point of time without assigning any reason. The procedure for direct recruitment for the post of Peon has been laid down in Rule 16 of 2009 Rules. It is submitted that 2009 Rules was amended in the year 2010. The same is known as "Uttar Pradesh Advocate General and Law Officers Establishment (2nd Amendment) Rules, 2010."
24. It is submitted that Rule 14 of 2009 Rules envisages two things; firstly, determination of the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to SC/ST and OBC category. Secondly, wide publication of the vacancies through advertisement in daily newspaper having wide circulation and through other means. The procedure relating to a fair and ethical appointment as well as the rules laying down the procedure to be followed in making an appointment to a public post were all given a go bye and in disdainful manner contrary to the applicable rules, appointment of the petitioners and other similarly situated incumbents were made in an arbitrary and whimsical manner.
25. Learned counsel for opposite parties no.2 to 4 has pointed out illegalities in appointment of the petitioners i.e., without determination of number of vacancies to be filled during the course of the year of recruitment and without determining the number of vacancies reserved for candidates belonging to SC/ST and OBC category, which is contrary to Rule 14 of 2009 Rules. It is further submitted that the appointment was made without notifying the vacancies to be filled by direct recruitment by issuing advertisement in daily newspapers having wide circulation and also such appointments were made without adhering to a fair, transparent and non-exploitive process of selection.
26. Learned counsel for opposite parties no.2 to 4 has invited attention towards Para - 12 of counter affidavit dated 24.04.2018 and submitted that on a complaint, a show-cause notice dated 27.10.2017 was issued by opposite party no.2 calling upon the petitioners to show-cause as to why in the absence of a fair, transparent and non-exploitive process of their appointments, their appointments be not cancelled and their services be not terminated. By way of aforesaid show-cause notice, a reply was called from the petitioners and other similarly situated incumbents to furnish the evidence on the points which are mentioned in Para - 12 of the counter affidavit. It is further submitted that the petitioners failed to provide even a single document leading to the conclusion that no publication was issued inviting applications for filling up the vacancies through direct recruitment and making vacancies known to public at large in consonance with Articles 14 & 16 of the Constitution of India.
27. It is also established that no interview letters were issued to the petitioners, no final list of meritorious candidates was prepared, examination was not conducted and also no candidates from the open market participated in the selection process, as no advertisement was published in the newspaper and no effort had been made to circulate the vacancies in the public at large.
28. Learned counsel for opposite parties no.2 to 4 has submitted that some documents, which are annexed in the writ petition, are fabricated and also not available on the records of the opposite parties. It is also submitted that some documents were forged by the petitioners. Learned counsel for opposite parties no.2 to 4 has invited attention towards Para - 24 of the counter affidavit and submitted that fraudulent purported notice has been issued under signature of one Poonam Kaushik, who had no authority to issue any such notice as not being a Gazetted Officer.
29. The file of the petitioners for regularisation was never put up before the then learned Advocate General by the Establishment Section of the Advocate General Office, Allahabad nor order dated 28.07.2014 has been issued or passed through the Establishment Section of the Advocate General Office, Allahabad. The dispatch register at Advocate General Office at Allahabad also does not record any entry relating to issuance of the purported fabricated order of regularisation dated 28.07.2014.
30. The learned counsel for opposite parties no.2 to 4 has submitted that 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 notice board etc., that will not meet the requirement of Articles 14 & 16 of the Constitution of India. Such a course violates the mandates of Articles 14 & 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 of the said constitutional requirement is to be fulfilled. It is further submitted that equality clause enshrined in Article 16 of the Constitution of India requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merits.
31. It is submitted that in the instant case it is crystal clear that no procedure has been adopted in the appointment of the petitioners and similarly situated other incumbents and their appointment is sheer violation of the provisions of the applicable statutes. In such circumstances, the entire appointment is illegal, contrary to the provision and deserves to be set aside.
32. The learned counsel has futher submitted that the learned Advocate General vide orders dated 22.12.2017 and 22.03.2018 have already terminated/cancelled the appointment of 27 employees after affording due opportunity of hearing. It is submitted that appointment of all the 27 employees, who have been terminated, was found illegal, against the procedure prescribed in the Rules and their regularisation of ad-hoc services was also found illegal, therefore, there is no illegality or any arbitrariness in the said termination order. The instant writ petitions filed by the petitioners/employees have no merit and therefore, the same may be dismissed with cost.
33. The parties exchanged affidavits in their respective writ petitions, which are available on record.
34. I have heard learned counsel for the parties and perused the materials available on record in all the above-mentioned writ petitions.
35. In the instant proceedings, the following issues for consideration are involved:-
"(I) whether the appointment of the petitioners is in violation of Rule 14(i) and 14(iii) of U.P. Advocate General and Law Officers Establishment Service rules, 2009 by not issuing/publishing advertisement in the daily newspapers and by not notifying vacancies in the Employment Exchange?
(II) whether the impguned order dated 22.03.2018 terminating the petitioners from the services has been issued mechanically, arbitrary and without following the procedure contained in the concerned service rules 2009 as well as violative of principle of natural justice?
(III) whether the petitioners who have alreeady put in long service on their respective posts from the date of their appointment till issuance of impugned order dated 22.03.2018 and even thereafter, in view of the deeming legal fiction of continuance in view of the interim order dated 30.03.2018 staying the operation and implementation of the impguned orders of termination, deserve to continue on their respective posts at least till the regular selection?"
36. The relevant provisions of 2009 Rules are reproduced here-under:-
PART-IV- QUALIFICATIONS
8. A candidate for recruitment to the various posts in the service must possess the following qualifications:
(i) Routine Grade Clerk Must have passed the Intermediate examination of the Board of High School and Intermediate Education, Uttar Pradesh or a qualification recognised by the Government as equivalent thereto and must possess minimum speed of 30 words per minute in English Typing or 25 words per minute in Hindi Typing.
Preference will be given for the working knowledge of computer application.
(ii) Sahayak Samiksha Adhikari/Sahayak Samiksha Adhikari (Record) Must possess Bachelor's degree of a University established by law in India or a qualification recognised by the Government as equivalent thereto and minimum speed of 30 words per minute in English typing or 25 words per minute in Hindi Typing. Good knowledge of Computer Application is essential.
(iii) Stenographer Must possess Bachelor's degree of a University established by law in India or a qualification recognised by the Government as equivalent thereto und minimum speed of 100 words per minute in English shorthand and 30 words per minute in English typing or 80 words per minute in Hindi shorthand and 25 words per minute in Hindi typing. Good knowledge of Computer Application is essential.
(iv) Cataloguer Bachelor's degree in Law and Diploma in Library Science from a University established by law in India. Good knowledge of Computer Application is essential.
(v) Routine Grade Clerk (Accounts) B.Com with Accountancy as a subject. Good knowledge of Computer is essential.
(vi) Computer Operator Grade A Must possess Bachelor's degree of a University established by law in India or a qualification recognised by the Government as equivalent thereto and diploma in Computer Science from a recognised Institution/"O" level Certificate from D.O.E.A.C.C. Three years experience in the field of Computer Application is essential.
(vii) Assistant Computer Operator Must possess Bachelor's Degree of a University established by law in India or a qualification recognised by the Government equivalent thereto and diploma in Computer Science from a recognised Institution/'0" level Certificate from D.O.E.A.C.C. Two years experience in the field of Computer Application is essential.
(viii) Peon (Anusewak/Chowkidar/Bundle Lifter/Farrash) Must have passed class VIII examination.
(ix) Sweeper Must have passed Class V examination.
(x) Mali Must have passed class VIII examination with experience of five years as Mali.
(xi) Electrician Must possess certificate from a recognised Industrial Training Institute in Electrical Trade.
(xii) Photostat Operator Must have passed class VIII examination and must possess experience of five years in operating photostat machine.
PART-V-PROCEDURE FOR RECRUITMENT
14. Determination of vacancies.-
The appointing authority shall determine the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6. The vacancies to be filled by direct recruitment shall be notified in the following manner:--
(i) by issuing advertisement in daily newspaper having wide circulation;
(ii) by pasting the notice on the notice board of the office or by advertising through Radio/Television and other employment newspapers; and
(iii) by notifying vacancies to the Employment Exchange.
15. Procedure for direct recruitment for the posts of Routine Grade Clerk, Sahayak Samiksha Adhikari/Sahayak Samiksha Adhikari (Record), Stenographer, Cataloguer, Routine Grade Clerk (Accounts), Computer Operator Grade 'A' and Assistant Computer Operator.--
Direct recruitment to the posts of Routine Grade Clerk, Sahayak Samiksha Adhikari/Sahayak Samiksha Adhikari (Record), Stenographer, Cataloguer, Routine Grade Clerk (Accounts), Computer Operator Grade 'A' and Assistant Computer Operator in the service shall be made in accordance with the provisions of the Uttar Pradesh Procedure for Direct Recruitment for Group 'C' Posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2002, as amended from time to time.
16. Procedure for direct recruitment for the posts of Peon (Anusewak), Chowkidar, Bundle Lifter, Farrash, Sweeper, Mali, Electrician and Photostat Operator.--
Direct recruitment to the posts of Peon (Anusewak), Chowkidar, Bundle Lifter, Farrash, Sweeper, Mali, Electrician and Photostat Operator in the service shall be made in accordance with the provisions of the Group 'D' Employees Services Rules, 1985, as amended from time to time.
17. Procedure for recruitment by promotion to the posts other than the posts of Routine Grade Clerk, Zamadar and Daftari.--
(1) Recruitment by promotion shall be made on the basis of the criterion laid down in the Uttar Pradesh Government Servants Criterion for Recruitment by Promotion Rules, 1994, as amended from time to time, through the Selection Committee constituted in accordance with the provisions of the Uttar Pradesh Constitution of Department Promotion Committee for Posts Outside the Purview of the Service Commission Rules, 1992, as amended from time to time.
NOTE- Nomination of officers for giving representation to the Scheduled Castes, Scheduled Tribes and other backward classes of citizens in the Selection Committee shall be made in accordance with the order made under Section 7 of the Act as amended from time to time.
(2) The appointing authority shall prepare eligibility lists of the candidates in accordance with the Uttar Pradesh Promotion by Selection (On Posts Outside the Purview of the Public Service Commission) Eligibility List Rules, 1986, as amended from time to time, and place the same before the Selection Committee along with their Character rolls and such other records, pertaining to them, as may be considered proper :
Provided that where there are two or more feeding cadres :--
(a) bearing different pay scales the candidates belonging to the cadre bearing higher pay scale shall be placed higher in the eligibility list.
(b) bearing same pay scale the names of the candidates shall be arranged in the eligibility list in order of their date of substantive appointment in their respective cadres. But if the dates of substantive appointment of two or more candidates is the same, then in such situation the candidate who is older in age shall be placed higher in the eligibility list.
(3) The Selection Committee shall consider the cases of candidates on the basis of records, referred to in sub-rule (2), and, if it considers necessary, it may interview the candidates also.
(4) The Selection Committee shall prepare a list of selected candidates in order of seniority as it stood the cadre from which they are to be promoted and forward the same to the appointing authority.
18. Procedure for recruitment by promotion to the post of Junior Grade Clerk.--
Recruitment by promotion to the post of Routine Grade Clerk shall be made in accordance with the provisions of the Uttar Pradesh Subordinate Offices Ministerial Group 'C' Posts of the Lowest Grade (Recruitment by Promotion) Rules, 2001, as amended from time to time.
19. Procedure for recruitment by promotion to the post of Zamadar and Daftari.--
(1) Recruitment by promotion to the posts of Zamadar and Daftari in the service shall be made on the basis of seniority subject to the rejection of unfit through a Selection Committee to be constituted by the appointing authority.
NOTE- Nomination of officers for giving representation to the Scheduled Castes, Scheduled Tribes and other backward classes of citizens in the Selection Committee shall be made in accordance with the order made under Section 7 of the Act as amended from time to time.
(2) The appointing authority shall prepare eligibility lists of the candidates in accordance with the Uttar Pradesh Promotion by Selection (On Posts Outside the Purview of the Public Service Commission) Eligibility List Rules, 1986, as amended from time to time, and place the same before the Selection Committee along with their character rolls and such other records, pertaining to them, as may be considered proper:
Provided that where there are two or more feeding cadres:--
(a) bearing different pay scales the candidates belonging to the cadre bearing higher pay scale shall be placed higher in the eligibility list.
(b) bearing same pay scale the name of the candidates shall be arranged in the eligibility list in order of their date of substantive appointment in their respective cadres. But if the date of substantive appointment of two or more candidates is the same, then in such situation the candidate who is older in age shall be placed higher in the eligibility list.
(3) The Selection Committee shall consider the cases of candidates on the basis of records, referred to in sub-rule (2), and, if it considers necessary, it may interview the candidates also.
(4) The Selection Committee shall prepare a list of selected candidates in order of seniority as it stood the cadre from which they are to be promoted and forward the same to the appointing authority.
20. Combined select list.--
If in any year of recruitment appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of the candidates from the relevant lists, in such manner that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion."
37. A perusal of the aforesaid provisions would show that for appointment or recruitment on any post in the office of the Advocate General at Allahabad & Lucknow, a proper advertisement of the said post(s) would first have to be made in the news paper for wide circulation.
38. During the course of argument of instant case (Writ Petition No.9184 (SS) of 2018), learned counsel for the petitioners has submitted that services of the petitioners and other similarly situated incumbents were never regularised by the State and they were working only on ad-hoc basis. However, learned counsel appearing for the State contradicted the submissions and categorically submitted that ad-hoc services of the petitioners and other similarly situated incumbents have already been regularised without following the procedure prescribed in law. In this juncture, this Court has passed the following order(s) on 08.01.2020:-
"During the course of argument, learned counsel for the petitioners has submitted that petitioenrs have been appointed on ad hoc basis but they have not been regularized by the State.
Learned Counsel appearing for the State has contradicted the aforesaid statements made by learned Counsel for petitioners.
In view of above, learned Counsel for petitioners is directed to file an affidavit bringing on record the statements as stated above.
List this case on 22.01.2020.
Interim order, if any, shall continue till the next date of listing."
39. In pursuance to the aforesaid order dated 08.01.2020, an affidavit has been filed on behalf of the petitioners on 16.01.2020 wherein relevant contentions were given, which are as follows:-
"6. That the Petitioners came across an order dated 28.07.2014 issued a Letter No.121 PSAGOP-R-14 whereby, all the Class IV and Class III employees working on daily wages basis or on ad-hoc basis in the learned Advocate General establishment were ordered to be regularized. The aforesaid order dated 28.07.2014 has been referred by the Petitioners in the Paragraph No.19 of the Writ Petition and copy of the same has been annexed Annexure-15 to the Writ Petition.
7. That the Respondent Nos.2 to 4 by means of the Counter Affidavit dated 23.04.2018 in its paragraph 44 have denied the existence of aforesaid regularization order dated 28.07.2014.
10. That the Petitioners who are merely Class IV employees initially remained under the impression that vide order dated 28.07.2014 their services stood regularized however subsequently by means of the Counter Affidavit, the Respondents have denied the very existence of the order dated 28.07.2014 of purported regularization, as such the Petitioners have realized that the services of Petitioners have not been regularized and the Petitioners still continue to be ad hoc employees.
11. That thus the Petitioners in view of the aforesaid facts are presently, on the post of the Peons (Anusevak) on ad hoc presently, basis in the office of the Advocate General Establishment."
40. The contention of learned counsel appearing for the petitioners is that appointment of the petitioners were made to meet out the exigency of work as there was shortage of incumbents in the office of Advocate General. Keeping the aforesaid submission in view, vide order dated 22.01.2020, the opposite parties were directed to file an affidavit bringing on record the number of employees who are working in the Advocate General's Office at Allahabad and Lucknow as also the details of the employees whose termination orders are under challenge before this Court. In pursuance of the said order, learned Additional Chief Standing Counsel appearing for opposite parties no.2 to 4 has filed affidavit dated 27.01.2020 wherein details were provided as per the directions of this Court. The relevant information contained in the affidavit are as follows:-
"4. That in compliance of the aforesaid order dated 22.01.2020, the deponent is submitting herewith the list of sanctioned of Class III posts number of employees workign, against the sanctioned post and number of vacancies as under:-
Sl. No. Posts Sanctioned Posts Filled Posts Vacant Posts
1.
Review Officer 72 52 20
2. Additional Private Secretary 53 24 29
3. Review Officer Account 2 2 0
4. Deputy Librarian 1 1 0
5. Assistant Review Officer Accounts 17 17 0
6. Research Assistant 2 2 0
7. Catloger 2 2 0
8. Assistant Review Officer 100 76 24
9. Computer Operator Grade-B 6 6 0
10. Computer Operator Grade-A 8 8 0
11. Asstt. Computer Operator 1 1 0
12. Computer Assistant 103 97 6
5. That it is pertinent to point out to this Hon'ble Court that apart from Class-III employees working against the sanctioned posts in the office of Advocate General, at present 28 Additional employees are working. Out of the 28 such Class-III employees, 21 Class-Ill employees are working in the Allahabad Office of Advocate General in compliance of the order passed in Writ-A No. 14876 of 2005: Ashok Kumar & others Vs. State of U.P and others and Writ-A No. 4146 of 2008: Usha Pandey and others Vs. State of U.P. and others as well as Contemn Petition No. 935 of 2009: Usha Pandey and Others Vs S.M.A. Abdi, Principal Secretary, Legal Remembrancer Govt. of U.P.: and they are being paid same salary as regular Class-III Employees. Apart from this 07 class employees working in the Lucknow Office of Advocate General are getting regular salary in compliance of the orders passed by this Hon'ble Court in Lucknow Bench in Writ Petition 5300 (SS) of 2009: Anil Kumar Sharma Vs. State of U.P. and others., Writ Petition No. 5240 (S/S) 2009: Anil Rastogi Vs. State of U.P. and others: Writ Petition No. 5513 (S/S) of 2009: Sanjay Verma Vs. State of U.P. and others and Writ Petition No. 5421 (S/S) of 2009 Smt. Narvada Dwivedi Vs. State of U.P. and others.
6. That the deponent is also submitting the list of sanctioned of Class IV posts number of employees working, against the sanctioned post and number of vacancies as under:
Sl. No. Posts Sanctioned Posts Filled Posts Vacant Posts
1.
Photo-Stat Operator 3 2 1
2. Daftari 9 7 2
3. Bundle Lifter 4 4 0
4. Peon 180 168 12
5. Farrash 2 2 0
6. Chaukidar 3 3 0
7. Electrical Mistri 1 1 0
8. Safar Karmchari 5 4 1
41. A Division Bench of this Court in the case of State of U.P. & Anr. Vs. Dalla Ram and Ors. (Writ Petition No.1/SB/2013) has issued following order (relevant portion) on 09.04.2013 :-
"...........
10. After hearing learned Chief Standing counsel Shri I.P.Singh at length and other counsel, we issue following directions for compliance by Principal Secretary, Law as well as the office of learned chief standing counsel:-
(1). The cases should be allotted to different State counsel immediately after receipt of cause list i.e. a day before. It shall be ensured that paper book is handed over or sent to the residence of different standing counsels by evening or night so that they may prepare the case and assist the court.
(2). All those cases where records are summoned or court requires appearance of Government officer, such government officers should meet the State Counsel along with records a day before so that State counsel may be ready with brief while assisting the court.
(3). Appointments may be made to provide photostat copy of the judgments by the learned Standing counsel to the courts during the course of hearing.
(4). Sufficient number of stenographers and other staff must be provided to the office of Chief Standing counsel to draft counter affidavit or affidavits in terms of instruction given by the courts or otherwise within the time frame provided for the purpose by the courts.
We are strange to note that there is no sufficient number of stenographer in the office of learned Chief Standing Counsel. Shri I.P.Singh learned Chief Standing counsel submits that outsourcing has been done and some appointment has been done on contract basis. It seems to be not proper. Government should create regular vacancies so that stenographer or clerks appointed in the office of learned chief standing counsel may not be disengaged and the office may be benefited by their experience. Functioning of office of learned chief standing counsel and courts are entirely different than the government department. Experience gained by the class 2,3 and class 4 employees while working in the office is an asset and office of learned chief standing counsel or the courts cannot be deprived from it. Government must create immediately requisite number of post of stenographers and other class III class IV post for the office of learned chief standing counsel/government advocate and immediately be filled up in accordance with rules by holding regular selection.
(5). The learned Chief Standing counsel/Government Advocate shall ensure that records are sent to court a day before by evening or at least by 10.00 0'clock in the morning and it must be checked by the persons who are assigned duty for the purpose.
(6). Necessary arrangements may be made in the Library to provide photostat copy of the journals and books to the learned Standing counsels/Government Advocates and in case, already not subscribed, sufficient number of journals be subscribed and library should be managed by the competent qualified persons.
Let the aforesaid direction be complied with expeditiously, say within a period of four months from the date of receipt of a certified copy of this order.
Principal Secretary, Law shall file his personal affidavit after due compliance the order.
11. We have issued aforesaid directions since, repeated orders have been passed by this court since last three or four years even more but respondent (State) have been failed to achieve its object and still substantial number of State Counsels are ill prepared or records are not sent to this court or counter affidavit is not filed within the time frame provided by the court.
12. On account of absence of assistance up to mark from the State counsels as well as non-filing of affidavit within time provided by the courts the backlog is increasing day by day. Inaction on the part of office of standing counsel on account of insufficient infrastructure obstruct the administration of justice. Court cannot function unless state counsels cooperate and provide assistance up to mark armed with case laws and paper book. Necessary infrastructure is necessary to tone up the administration of the office of Chief Standing Counsel so that requisite assistance may be provided to the court by the government counsels who are also officers of the court.
With the aforesaid direction, we disposed of writ petition finally. Registry shall list the case after four month for perusal of compliance report."
42. The aforesaid directions were issued by the Division Bench for ensuring proper functioning of the office of learned Chief Standing Counsel. In another writ petition bearing No.7155 (MB) of 2008 (supra), the Division Bench of this Court expressed their anguish about functioning of the Advocate General's Office.
43. In view of the aforesaid directions issued by the Division Bench(s), the appointing authority took a decision to make appointment on ad-hoc basis for Class - IV posts of Peon by resorting to the procedure prescribed in Rule 14(ii) of 2009 Rules i.e. by pasting the notice on notice board. The applications were invited and the selection was made from amongst the eligible candidates who had applied for the same. A three member committee was constituted for selection on Class - IV posts for which an interview was taken place on 18.06.2014 and thereafter a select list was prepared on 19.06.2014. On 20.06.2014, the appointing authority issued a composite appointment letter for peon.
44. Against other vacant posts, several appointments were made on ad-hoc basis by the authority concerned for proper functioning of the office of Advocate General at Allahabad and Lucknow.
45. After perusal of the entire documents and after hearing the submissions, there is no doubt that the said appointments were made in terms of order dated 09.04.2013 (supra) passed by a Division Bench of this Court. It is also clear that in those appointments, the statutory provisions were not followed due to exigencies of work in the office of Advocate General.
46. It is established by several judgments of the Hon'ble Supreme Court that a court can condone an irregularity in the appointment procedure only if the irregularity does not go to the root of the matter. For sanctioned posts having vacancies, such posts have to be filled by regular recruitment process of prescribed procedure otherwise, the constitutional mandate flowing from Articles 14, 16, 309, 315, 320 etc is violated.
47. In the case of Secretary, State of Karnataka and Others v. Umadevi and Others - (2006) 4 SCC 1, the Hon'ble Supreme Court has held as follows:-
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme."
48. In Uma Devi's case (supra), the Hon'ble Supreme court has further held that sometimes this process is not adhered to and the constitutional scheme of public employment is bypassed. The employer or the departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure as per the rules adopted and to permit these irregular appointees to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor, approaching the Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called "litigious employment", has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over. It is time, that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established.
49. It is further held that by the Hon'ble Supreme Court in Umadevi's case (supra) that this Court has also on occasions issued directions which could not be said to be consistent with the constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualisation of justice. The question arises, equity to whom? Equity for the handful of people who have approached the court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the constitutional scheme, certainly tend to water down the constitutional requirements.
50. I have already indicated the constitutional scheme of public employment, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent.
51. The Hon'ble Supreme Court in the case of National Fertilisers Limited & Ors. vs. Somvir Singh - (2006) 5 SCC 493 by referring to the ratio of Umadevi's case (supra) has held that persons who have been appointed for termporary purpose or temporary employees in posts, such person cannot claim regularisation.
52. The Hon'ble Supreme Court in a way laid down the same ratio in the case of State of Orissa and Ors. vs. Mamata Mohanty - (2011) 3 SCC 436 and held that candiddates who are not duly qualified if are appointed, the same would cause grave and irreparable injury to other unqualified candidates who would have otherwise applied, and therefore in such a case when unqualified persons seek regularization, that would be violative of the ratio in the case of Umadevi (supra) as also Articles 14 and 16 of the Constitution of India. The relevant observations of the Supreme Court in the case of Mamta Mohanty (supra) are made in para 36 of the judgment, and para 35 also is relevant because the same makes the legal position very clear that the object of issuing advertisement is to ensure open competition by calling of all the eligible candidates. These paras 35 and 36 read as under:-
"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, it 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 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. [(1992) 4 SCC 99 : 1992 SCC (L&S) 805 : (1992) 21 ATC 386 : AIR 1992 SC 789] , State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403 : AIR 1992 SC 2130] , Excise Supdt. v. K.B.N. Visweshwara Rao [(1996) 6 SCC 216 : 1996 SCC (L&S) 1420] , Arun Tewari v. Zila Mansavi Shikshak Sangh [(1998) 2 SCC 332 : 1998 SCC (L&S) 541 : AIR 1998 SC 331] , Binod Kumar Gupta v. Ram Ashray Mahoto [(2005) 4 SCC 209 : 2005 SCC (L&S) 501 : AIR 2005 SC 2103] , National Fertilizers Ltd. v. Somvir Singh [(2006) 5 SCC 493 : 2006 SCC (L&S) 1152 : AIR 2006 SC 2319] , Telecom District Manager v. Keshab Deb [(2008) 8 SCC 402 : (2008) 2 SCC (L&S) 709] , State of Bihar v. Upendra Narayan Singh [(2009) 5 SCC 65 : (2009) 1 SCC (L&S) 1019] and State of M.P. v. Mohd. Abrahim [(2009) 15 SCC 214 : (2010) 1 SCC (L&S) 508] .)"
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.
53. In the case of State of Haryana v. Piara Singh & Ors. - (1992) 3 SCR 826, the Hon'ble Supreme court has held that appointment to the public posts should ordinarily be made by regular recruitment through the prescribed agency and that even where ad-hoc or temporary employment is necessitated on account of the exigencies of administration, the candidate should be drawn from the employment exchange and that if no candidate is available or sponsored with the employment exchange, some method consistent with the requirements of Article 14 of the Constitution should be followed by publishing notice in appropriate manner for calling for applications and all those who apply in response thereto should be considered fairly, proceeded to observe that if an ad-hoc or temporary employee is continued for a fairly long spell, the authorities are duty bound to consider his case for regularization subject to his fulfilling the conditions of eligibility and the requirement of satisfactory service.
54. After perusing all the material and documents available on record, I am convinced that the appointment of the petitioners and other similarly situated incumbents on ad-hoc basis were violative of statutory provisions. The notices/vacancies were never advertised in daily news paper and employement exchange, as a requirement of statutory provisions of Rules applicable, therefore, appointment of the petitioners on ad-hoc basis is contrary to the Rules and therefore, found faulted.
55. However, there is no allegation that the petitioners committed any forgery or misrepresentation for procuring the job in the office of Advocate General. It is also not the case of the respondents that the petitioners did not possess the minimum requisite qualification as prescribed by the Rules or that the petitioners were not eligible to be appointed against their respective posts. Thus, it is evident that the petitioners and other similarly situated incumbents were appointed on their respective posts by the appointing authority i.e. learned Advocate General by exercising his discretion due to exigency of service, on account of acute shortage of staffs including on Class - IV posts in the office of Advocate General and State Law Officers and in view of the emergent situation which had emerged on account of directions issued by Division Bench of this Court vide order dated 09.04.2013 & 25.11.2013 (supra).
56. In the case of Dr. M.S. Mudhol and Anr. v. S.D. Halegkar and Ors. - (1993) 3 SCC 591, though the incumbents did not possess the minimum requisite qualification, the Hon'ble Supreme Court declied to interfere with the appointment of such incumbent and held as follows in Paras - 2, 6, 7 & 9:-
2. Admittedly, the 1st respondent who did not belong to the same school had M.A. degree in Political Science with third class with 41.1% aggregate marks, although he had his M.Ed. in second class. Respondent 1, according to the petitioners, however, did not also have the required experience of 10 years' teaching, since he was working as an Inspector of Schools prior to his selection as the Principal. The schools which he was inspecting had also classes only up to the 8th standard. Thus, except the degree of M.Ed. which he possessed, he did not have the other two statutory essential qualifications at the time of his appointment as the Principal. According to the petitioners, who are the members of the teaching staff of the same school but not aspirants for the post of Principal, the fact that the 1st respondent lacked the two essential qualifications came to their light for the first time in 1990 and, therefore, they moved the High Court by a writ of quo warranto against the 1st respondent. The High Court, however, dismissed the petition on the ground of laches and also on the ground that the petitioners had not asserted in the writ petition that the advertisement inviting the applications for the post of the Principal was published before the 1st respondent was selected as the Principal.
6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same.
7. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ.
9. In the circumstances, we decline to interfere with the appointment of the 1st respondent and dismiss the petition. There will be no order as to costs.
57. Similar view has been expressed by the Hon'ble Supreme Court in the case of Rekha Chaturvedi (Smt.) v. University of Rajasthan and Ors. - 1993 Supp (3) SCC 168. Relevant portion of Para - 11 of the said case is reproduced hereunder:-
11. However, for the reasons which follow, we are not inclined to set aside the selections in spite of the said illegality. The selected candidates have been working in the respective posts since February 1985. We are now in January 1993. Almost eight years have elapsed..............
58. In Mamata Mohanty's case (supra), the following has been held by the Hon'ble Supreme Court in Para - 70:-
70. In the facts and circumstances of the case, we feel that terminating the services of those who had been appointed illegally and/or withdrawing the benefits of grant-in-aid scheme of those who had not completed the deficiency in eligibility/educational qualification or withdrawing the benefit thereof from those who had been granted from the date prior to completing the deficiency, may not be desirable as a long period has elapsed. So far as the grant of UGC pay scale is concerned, it cannot be granted prior to the date of acquisition of higher qualification. In view of the above, the impugned judgment/order cannot be sustained in the eye of the law.
59. In the case of State of U.P. and Anr. vs. Anand Kumar and Ors. - (2018) 13 SCC 560, the following has been held by Hon'ble Supreme Court in Paras - 28, 29, 30, 31, 32 & 33:-
28. We are in agreement with the above findings. In view of clear mandate of law statutorily requiring minimum qualification for appointment of teachers to be appointed after the date of the Notification dated 23-8-2010, there is no doubt that no appointment was permissible without such qualifications. Appointments in the present case are clearly after the said date. Relaxation provision could be invoked for a limited period or in respect of persons already appointed in terms of applicable rules relating to qualifications. The Shiksha Mitras in the present case do not fall in the category of pre 23-8-2010 Notification whose appointment could be regularised.
29. Further difficulty which stares one in the face is the law laid down by this Court on regularisation of contractually appointed persons in public employment. Appointment of Shiksha Mitras was not only contractual, it was not as per qualification prescribed for a teacher nor on designation of teacher nor in pay scale of teachers. Thus, they could not be regularised as teachers. Regularisation could only be of mere irregularity. The exceptions carved out by this Court do not apply to the case of the present nature.
30. In view of our conclusion that the Shiksha Mitras were never appointed as teachers as per applicable qualifications and are not covered by relaxation order under Section 23(2) of the RTE Act, they could not be appointed as teachers in breach of Section 23(1) of the said Act. The State is not competent to relax the qualifications.
31. Since, we have given full hearing to all Shiksha Mitras through their respective counsel, it is not necessary to consider the argument of breach of procedure under Order 1 Rule 8 CPC.
32. On the one hand, we have the claim of 1.78 lakh persons to be regularised in violation of law, on the other hand is the duty to uphold the rule of law and also to have regard to the right of children in the age of 6 to 14 years to receive quality education from duly qualified teachers. Thus, even if for a stop-gap arrangement teaching may be by unqualified teachers, qualified teachers have to be ultimately appointed. It may be permissible to give some weightage to the experience of Shiksha Mitras or some age relaxation may be possible, mandatory qualifications cannot be dispensed with. Regularisation of Shiksha Mitras as teachers was not permissible. In view of this legal position, our answers are obvious. We do not find any error in the view [Anand Kumar Yadav v. Union of India, 2015 SCC OnLine All 3997 : ILR 2015 All 1108 : (2015) 8 ADJ 338] taken by the High Court.
33. Question now is whether in the absence of any right in favour of Shiksha Mitras, they are entitled to any other relief or preference. In the peculiar fact situation, they ought to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in terms of advertisements for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the authority concerned. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides.
60. In view of the aforesaid discussion and after going through all the material available on record as well as relevant rules and law, answer to the issues framed in Para-35 of this order are as follows:
(I) The ad-hoc appointments of the petitioners and other similarly situated incumbents were made in terms of order passed by Division Bench(s) of this Court, however without following the relevant statutory provisions due to exigency of work in the office of Advocate General. Therefore, the services of the petitioners and other similiarly situated incumbents are dehors the rules and without following the procedure prescribed. In such circumstances, the said order of appointment as well as the order of regularisation be treated as void ab initio.
(II) The impugned order dated 22.03.2018 terminating the services of the petitioners has been passed after following the procedure prescribed in the 2009 Rules as well as the law established.
(III) Considering the extreme shortage of Class - III and Class - IV employees in the office of Advocate General and in order to meet the requirement, it would be appropriate if the order of appointment of the petitioners and other similarly situated incumbents on ad-hoc basis remain in operation till regular selection is made.
61. In the peculiar fact situation, as stated above, it is directed that regular selection be made as per the relevant statute at the earliest and the petitioners and other similarly situated incumbents ought to be given opportunity to be considered for recruitment if they possess the requisite qualification in terms of advertisement as well as the statute. They may also be given suitable age relaxation and some wightage for their experience as may be decided by the authority concerned.
It is further directed that till regular selection is made, the State is at liberty to continue the petitioners and other similarly situated incumbents on their respective posts on same terms on which they were working.
It is also directed that the petitioners and other similarly situated incumbents be paid arrears of salary, if any, for the period they had worked, and in future be paid regularly.
62. With the aforesaid observations/directions, all the above-mentioned writ petitions are disposed of.
Order Date :- 21.05.2020 nishant/-
[Chandra Dhari Singh, J.]