Allahabad High Court
Kuldeep Kumar Gupta & 7 Ors. vs State Of U.P. Through Prin. Secy. Nagar ... on 14 November, 2013
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R . Judgment Reserved On:-10.06.2013 Judgment Delivered On :-14.11.2013 Case :- SERVICE SINGLE No. - 3438 of 2013 Petitioner :- Kuldeep Kumar Gupta & 7 Ors. Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C. And Case :- SERVICE SINGLE No. - 3434 of 2013 Petitioner :- Jitendra Kumar & 8 Ors. Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Savita Jain Counsel for Respondent :- C.S.C.,I.P.Singh Judgment Reserved On:-14.06.2013 Judgment Delivered On :-14.11.2013 Case :- SERVICE SINGLE No. - 3472 of 2013 Petitioner :- Pradeep Kumar Verma Respondent :- State Of U.P.Throu Prin.Secy.Nagar Vikas Lko.And Ors. Counsel for Petitioner :- Vivek Raj Singh,Rajendra Pandey Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3473 of 2013 Petitioner :- Dhananjay Singh And Ors. Respondent :- State Of U.P.Thro.Prin.Secy.Nagar Vikas Lko.And Ors. Counsel for Petitioner :- Vivek Raj Singh,Rajendra Pandey Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3474 of 2013 Petitioner :- Ayushman Singh Respondent :- State Of U.P.Throu.Prin.Secy.Nagar Vikas Lko.And Ors. Counsel for Petitioner :- Vivek Raj Singh,Rajendra Pandey Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3477 of 2013 Petitioner :- Vijay Kumar Pandey Respondent :- State Of U.P. Thru Prin.Secy.Nagar Vikas Lucknow & Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P. Singh And Case :- SERVICE SINGLE No. - 3478 of 2013 Petitioner :- Brijesh Sahu Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3479 of 2013 Petitioner :- Vinay Kumar Mishra & Another Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3480 of 2013 Petitioner :- Piyush Kumar Singh & 11 Ors. Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Savita Jain Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3492 of 2013 Petitioner :- Shyam Bahadur & 7 Ors. Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3493 of 2013 Petitioner :- Umesh Respondent :- State Of U.P. Thru Prin.Secy.Nagar Vikas Lucknow And Others Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P. Singh And Case :- SERVICE SINGLE No. - 3494 of 2013 Petitioner :- Jai Shankar Vishwakarma And Another Respondent :- State Of U.P.Throu.Prin.Secy.Nagar Vikas Lko.& Ors. Counsel for Petitioner :- Vivek Raj Singh,Rajendra Pandey Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3495 of 2013 Petitioner :- Bhupesh Dixit & Another Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3496 of 2013 Petitioner :- Sanjay Singh And Another Respondent :- State Of U.P.Throu.Prin.Secy.Nagar Vikas Lko.& Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3497 of 2013 Petitioner :- Gaurav Kumar And Another Respondent :- State Of U.P. Thru Prin.Secy.Nagar Vikas Lucknow And Others Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P. Singh And Case :- SERVICE SINGLE No. - 3498 of 2013 Petitioner :- Mohd. Taukeer Rehmani & 7 Ors. Respondent :- State Of U.P. Through Prin. Secy. Nagar Vikas Lko. & Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P.Singh And Case :- SERVICE SINGLE No. - 3499 of 2013 Petitioner :- Anjani Kumar Mishra And Ors. Respondent :- State Of U.P.Throu.Prin.Secy.Nagar Vikas Lko.& Ors. Counsel for Petitioner :- Rajendra Pandey,Vivek Raj Singh Counsel for Respondent :- C.S.C.,I.P.Singh Hon'ble Rakesh Srivastava,J.
1.By separate orders dated 29.8.2011, all the petitioners were appointed on contract basis for a period of six months. After the initial term came to an end, the term of all the petitioners was extended for a further period of six months. The extended period of contract was to come to an end in August/September, 2012 as the case may be.
2.During the extended period of contract, the services of all the petitioners were terminated by separate orders dated 16.5.2012. The termination orders were assailed by the petitioners in various writ petitions preferred by the petitioners in this Court. In pursuance of the interim orders passed in the said writ petitions, the petitioners were allowed to continue in service.
3.In the meantime, in pursuance of an appointment notice dated 10.5.2013, an advertisement was published in Hindi daily "Dainik Jagran" on 12.5.2013 inviting applications from eligible candidates for direct appointment on the posts mentioned therein.
4.The legality of the appointment notice dated 10.5.2013 and the advertisement dated 12.5.2013, in so far as it relates to the post of Junior Engineer (Civil) and Junior Engineer (Electrical/Mechanical) on which the petitioners are working, is the subject matter of discussion in the bunch of writ petitions mentioned above.
5.All the writ petitions mentioned above raise a common question of fact and law and as such they are being disposed of by a common order.
6.Heard Sri Vivek Raj Singh and Savita Jain, learned counsel for the petitioners, learned Standing Counsel appearing for opposite party no.1 and Sri I.P. Singh, learned counsel appearing for opposite parties no. 2 to 6.
7.Learned counsel for the petitioners have vehemently submitted that the impugned advertisement dated 12.5.2013 has been issued in violation of the interim orders passed by this Court. It has been urged that the action of the Nigam in issuing the advertisement without reserving seats for the petitioners is contemptuous. It has been submitted that the post on which the petitioners were working, were protected by the interim orders passed by this Court and as such they could not have been advertised. The edifice of the submissions made on behalf of the petitioners is based upon the interim orders passed by this Court in the writ petitions preferred by the petitioners against the termination of their services. No other ground has been pressed by the learned counsel for the petitioners.
8.Per contra Sri I.P. Singh, learned counsel for the opposite parties no. 2 to 6 has submitted that the extended term of the contract of the petitioners came to an end in August/September, 2012 and in the absence of any order extending the term of the petitioners service beyond August/September, 2012, the petitioners were entitled to continue in service only till August/September, 2012, as the case may be and not beyond that the learned counsel submits that the petitioners were appointed on contract basis for a fixed term and as per the terms and conditions of their appointment orders, as well as the agreements executed by the petitioners, the petitioners are estopped from claiming regular appointment or regularization of their services. Learned counsel for the opposite parties has further submitted that the interim orders passed by this Court in various writ petitions preferred by the petitioners against the termination of their services do not restrain the opposite parties from making regular appointments on the posts in question. Accordingly to the learned counsel even if the petitioners have been permitted to continue beyond August/September, 2012 under the interim orders passed by this Court, it would not confer any right upon the petitioners to claim regular appointment or regularization either at present or in future. According to the learned counsel for the opposite parties no. 2 to 6 the petitioners have no locus to challenge the impugned advertisement. All the writ petitioners mentioned above are liable to be dismissed as such.
9.Learned Standing Counsel has supported the arguments of Sri I.P. Singh, learned counsel for opposite parties no. 2 to 6.
10.I have considered the rival submissions made by the learned counsel for the parties and perused the records.
11.The Uttar Pradesh Jal Nigam (hereinafter referred to as the 'Nigam') has been incorporated under section 3 of the Uttar Pradesh Water Supply and Sewerage Act, 1975 (hereinafter referred to as the 'Act'). The functions of the Nigam have been enumerated in section 14 of the said Act. One of the function as enumerated in section 14 of the Act is preparation, execution, promotions and financing the schemes for the supply of water and for sewerage and sewage disposal. Apart from the functions enumerated in section 14 of the Act, the State Government is empowered to entrust to the Nigam such other functions as it may deem fit.
12.In exercise of the power conferred under the Act, Regulations known as Uttar Pradesh Jal Nigam Subordinate Services Regulations, 1979 (hereinafter referred to as the ''Regulations') have been framed by the Nigam. The cadre of Subordinate Engineering Services comprises of the post of Junior Engineer (Civil) and Junior Engineer (Electrical and Mechanical). The said Regulations lay down the service conditions of the Junior Engineers working in the Nigam. Regulation 3 (V) provides that a member of service means a person who has been appointed on regular basis under the Regulations or who has been appointed on regular basis under the Rules prevalent prior to the Regulations or a person who has been transferred to the Nigam under the provisions of the Act. Regulation 3 (M) provides that regular appointment means an appointment made under the Regulations. Regulations 14, 15, 16 and 17 prescribe the mode and manner in which appointment has to be made on the post of Junior Engineer (Civil) and Junior Engineer (Electrical and Mechanical). Regulations 3(V), 3(M½ 14, 15, 16 and 17 being relevant are being quoted below:-
3-(V) "lsok dk lnL;" dk rkRi;Z bl fofu;ekoyh ds ;k bl fofu;ekoyh ds izo`Rr gksus ds iwoZ ykxw fu;eksa ds vuqlkj fu;fer :i ls fu;qDr vFkok mRrj izns'k ty laHkj.k ,oa lhoj O;oLFkk vf/kfu;e 1975 ds v/khu fuxe dks LFkkukUrfjr O;fDr;ksa ls gSA (M) "fu;fer fu;qfDr" dk rkRi;Z ,slh fu;qfDr ls gS tks fd bl fofu;ekoyh ds vFkok bl fofu;ekoyh ds iz[;ki= ds iwoZ izo`Rr fof/kd micU/kksa ds v/khu fdlh Hkh izdkj dh fjfDr ds izfr dh xbZ gksA fjfDr;ksa dk vo/kkj.k 14- fu;qfDr izkf/kdkjh Hkjh tkus okyh fjfDr;ksa dh la[;k vo/kkfjr djsxk rFkk lekpkj i=ksa esa foKkiu ds ek/;e ls vkosnu i= vkeaf=r djsxkA Hkjrh dh izfdz;k 15- ¼1½ Hkjrh fuxe }kjk xfBr p;u lfefr djsxhA ¼2½ Hkjrh izfr;ksfxrk ijh{kk rFkk lk{kkRdkj ds ek/;e ls dh tk;sxhA izfr;ksfxrk ijh{kk rFkk lk{kkRdkj ds ek/;e ls Hkjrh 16- ¼1½ fjfDr gksus ij tc Hkjrh djuk gks rks fu;qfDr izkf/kdkjh vH;fFkZ;ksa ls izkIr lHkh vkosnu i=ksa dh leh{kk djsxk vkSj ,sls vH;FkhZ@vH;fFkZ;ksa tks bl fofu;ekoyh ds v/khu HkrhZ ds fy, ik= ik;s tk;saxs] fyf[kr izfr;ksfxrk ijh{kk dk@ds fnukad lwfpr djsxkA fdlh vH;FkhZ dks fyf[kr ;ksX;rk ijh{kk esa rc rd lEefyr ugha fd;k tk,xk tc rd fd mlds ikl fu;e ls dksbZ izkf/kdkj ;k izos'k izek.k i= u gksA fVIi.kh & izfr;ksfxrk ijh{kk ls lEcfU/kr ikB~; fooj.k vkSj fu;e fuxe }kjk le; le; ij fofgr fd;s tk;saxsaA ¼2½ fu;qfDr izkf/kdkjh vH;fFkZ;ksa dh lwph ;ksX;rk ds dze esa] tSlk fd fyf[kr ijh{kk ls izdV gks] rS;kj djsxk vkSj ,sls vH;fFkZ;ksa dks tks fuxe }kjk fu/kkZfjr ekud ds vuqlkj vgZrk izkIr djs] lk{kkRdkj ds fy, cqyk;sxkA izR;sd vH;FkhZ }kjk lk{kkRdkj esa izkIr fd;s x;s vadksa dks fyf[kr ijh{kk esa izkIr vadksa dks tksMk tk;sxkA vH;fFkZ;ksa dh vfUr fLFkfr muds }kjk izkIr fd;s x;s vadksa ds dqy ;ksx ls vo/kkfjr dh tk;sxh vkSj rnuqlkj lwph cukbZ tk;sxhA ;fn nks ;k vf/kd vH;FkhZ leku vad izkIr djsa rks fyf[kr ijh{kk esa vf/kd vad izkIr djus okys vH;FkhZ dks Js"Brk lwph eas mij j[kk tk;sxkA ;fn nks ;k vf/kd vH;FkhZ fyf[kr ijh{kk rFkk lk{kkRdkj nksuksa esa leku vad izkIr djsa rks fMIyksek ijh{kk esa vf/kd vad izkIr djus okys vH;FkhZ dks Js"Brk lwph esa mij j[kk tk;sxkA 17- ¼1½ p;u lfefr }kjk rS;kj dh x;h vH;fFkZ;ksa dh lwph dks fu;qfDr izkf/kdkjh fu;qfDr gsrq vuqeksfnr djsxkA fjfDr;ksa] tks orZeku gks ;k Hkfo"; esa gksus okyh gksa] bl lwph ds vH;fFkZ;kas }kjk Hkjh tk;sxhA ¼2½ ;fn fu;qfDr izkf/kdkjh p;u lfefr dh laLrqfr ls lger u gks rks og ekeyk fuxe ds le{k izLrqr fd;k tk;sxkA bl lEcU/k esa fuxe dk fu.kZ; vfUre gksxk rFkk fu;qfDr izkf/kdkjh mlds vuqlkj dk;Zokgh djsxkA
13. A perusal of the regulations mentioned above makes it apparent that for regular appointment on the post of Junior Engineer (Civil) and Junior Engineer (Electrical/Mechanical) the appointing authority has to determine the number of vacancies to be filled up. For filling up the vacancies, so determined, the appointing authority has to invite applications from all the eligible candidates by issuing an advertisement in the news papers. The recruitment has to be made on the basis of a written examination and interview. The appointing authority has then to examine all the applications received in pursuance of the advertisement mentioned above and those candidates who are found eligible as per the regulations have to be informed about the date of written examination. Thereafter, the appointing authority is obliged to call the candidates for interview strictly in accordance with list prepared as per the performance of the candidates in the written examination. On the basis of the marks obtained by the candidates in the written examination and the interview a combined select list has to be prepared. The regular appointments in the service are to be made strictly on the basis of the combined select list so prepared.
14. In the case of Union Public Service Commission versus Girish Jayanti Lal Vaghela and others reported in (2006) 2 SCC 482 in paragraph no. 12 the apex court has held that 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 do not get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution. Paragraph 12 of the report is as follows:
"Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity of all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices. The words "employment or appointment" cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation, etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judgment the inter-se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution".
15. In the case of Secretary State of Karnataka versus Uma Devi, (2006) 4 SCC 188, a Constitution bench of the Apex Court in paragraph 35 of the report has held as follows :-
"These bindings decisions are clear imperatives that adherence to Article 14 & 16 of the Constitution is a must in the process of public employment".
16. The Nigam is a State within the meaning of Article 12 of the Constitution and is obliged to strictly adhere to the principles enumerated in Articles 14 and 16 of the Constitution.
17. In the present case, it appears that a large number of posts of Junior Engineer (Civil) and Junior Engineer (Electrical and Mechanical) in the Nigam were lying vacant. The Nigam sought permission from the State Government to fill up the said vacancies. As the permission was not forthcoming, left with no other alternative, in the exigency of work, the Nigam decided to make short-term contractual appointments. Accordingly, the Nigam issued an advertisement in the news papers inviting applications from interested candidates for appointment on contract basis inter alia on 100 posts of Junior Engineer (Civil) and 15 posts of Junior Engineer (Electrical/Mechanical) for discharging the duties as mentioned in the said advertisement. The advertisement dated 18.6.2011 issued in Hindi daily ''Dainik Jagran' was as follows:-
mRrj izns'k ty fuxe] 6 jk.kk izrki ekxZ] y[kuÅ foKfIr mRrj izns'k ty fuxe y[kuÅ }kjk lUHkj.k ,oa lhoj&O;oLFkk lEcU/kh lsokvksa ls lEcfU/kr ukxjh; ,oa xzkeh.k {ks=ks dh ;kstukvks ds izdYi foj/ku] fdz;kUo;u ,oa vuqj{k.k ds dk;ksZ ds fuLiknu gsrq lgk;d vfHk;Urk ¼flfoy½¼lafonk½@lgk;d vfHk;Urk ¼fo0;kW0½¼lafonk½ twfu;j baftfu;j ¼flfoy½¼lafonk½@twfu;j baftfu;j ¼fo0;kW0½¼lafonk½ ds inksa ij lafonk ij dk;Z djus ds bPNqd Hkkjr ds ukxfjdks ls vkosnu i= fu/kkZfjr izk:i ij fnukad 25-03-2011 rd eq[; vfHk;Urk ¼v&2&1½@¼v&2&2½] mRrj izns'k ty fuxe] 6 jk.kk izrki ekxZ] y[kuÅ ds dk;kZy; esa vkeaf=r fd;s tkrs gSA lafonk ij fu;qfDr ik= vH;fFkZ;ksa ds lk{kkRdkj ds i'pkr dh tk;sxhA lk{kkRdkj mRrj izns'k ty fuxe }kjk y[kuÅ esa QhYM gkLVy] m0iz0 ty fuxe] 2 yky cgknqj 'kkL=h ekxZ] y[kuÅ ij fnukad 25-06-2011 dks izkr% 10-00 cts ls izkjEHk gksxkA fu;qfDr gsrq inksa dk fooj.k fuEuor%& dz-la-
in dk uke lafonk ij fu;qfDr gsrq inkas dk fooj.k lkekU;
vU; fiNMk oxZ vuqlwfpr tkfr vuqlwfpr tutkfr ;ksx 1 lgk;d vfHk;Urk ¼flfoy½¼lafonk½ 20 12 8 & 40 2 lgk;d vfHk;Urk ¼fo-;kW½¼lafonk½ 3 2 1 & 6 3 twfu;j bathfu;j ¼flfoy½¼lafonk½ 50 27 21 2 100 4 twfu;j bathfu;j ¼fo-;kW½¼lafonk½ 7 4 4 & 15 inksa dh la[;k vko';drkuqlkj ?kVkus&c foKfIr ls lacaf/kr fooj.k vU; fooj.k o 'ks''k 'krsZ m0iz0 ty fuxe dh osclkbV www.upjn.org ij miyC/k gSA
18. The petitioners were selected and appointed in pursuance of the advertisement mentioned above. As mentioned in the advertisement, the appointment was made only on the basis of interview. By separate appointment orders dated 29.8.2011, the petitioners were appointed on contract basis for a period of six months on consolidated sum of Rs. 20,000/- per month. On the expiry of the initial term of contract, by different orders, the term of all the petitioners was extended for a further period of six months. The extended period of contract was to come to an end in August/September, 2012.
19. Before examining the contentions raised by the learned counsel for the parties, it will be convenient to set out the order dated 29.8 .2011, by means of which Kuldeep Kumar Gupta, one of the petitioners was initially appointed on a short-term contract basis. The other petitiones were also appointed by similar orders.
dk;kZy; eq[; vfHk;ark ¼v-2-2-½] m0iz0 ty fuxe] 6 jk.kk izrki ekxZ] y[kuÅ A la[;k % 997@v&2&2@2161&0095@11 fnukad% 29-08-2011 dk;kZy; Kki mRrj izns'k ty fuxe] y[kuÅ }kjk ty lEHkj.k ,oa lhoj&O;oLFkk lEcU/kh lsokvks ls lEcfU/kr ukxjh; ,oa xzkeh.k {ks=ksa dh ;kstukvks ds izdYi fojpu] fdz;kUo;u ,oa vuqj{k.k ds dk;kZs ds fu"iknu gsrq lafonk ds vk/kkj ij Jh dqynhi dqekj xqIrk iq= Jh jketh xqIrk dh fu;qfDr dk;kZy; vf/k-vfHk-] fuekZ.k [k.M] m-iz- ty fuxe] eÅ esa twfu;j baftfu;j ¼flfoy½¼lafonk½ ds in ij dk;ZHkkj xzg.k djus dh frfFk ls N% ekl dh vof/k gsrq ,deq'r ekfld ifjyfC/k ¼emoluments½ :- 20]000@& ¼:i;s chl gtkj ek=½ izfrekg dh nj ij fuEufyf[kr 'krksZ ds v/khu fu;qfDr dh tkrh gSA
20. In Director, Institute of Management Development, U.P. Vs. Pushpa Srivastava (Smt), 1992 (4) SCC 3, in paragraph 19 of the report, the apex court held as follows:
".............To our mind, it is clear that where the appointment is contractual and by efflux of time, the appointment comes to an end, the respondent could have no right to continue in the post."
21. In the case of Pushpa Srivastava (supra), Pushpa Srivastava was appointed on a consolidated fixed compensation on contract basis for a period of three months. It was specifically stated in the appointment order that the appointment was purely on ad hoc basis, liable for termination without any notice on either side. The appointment was extended from time to time. On 14.1.1991, five posts including the post on which Pushpa Srivastava was working, were abolished. As the term of Pushpa Srivastava was coming to an end, she preferred a writ petition in this Court. Her writ petition was allowed and a direction was issued to put her back on duty on the post held by her. A further direction was issued to regularise her services within three months. The order passed by this court was set aside by the apex court. It was held that the appointment of Pushpa Srivastava was purely ad hoc and on a contractual basis for a limited period and by expiry of the period of six months, the right to remain in the post came to an end. The apex court stated that the view they were taking was the only view possible and set aside the judgment of the High Court which had given relief to the appointee.
22. In view of the settled legal position, it is crystal clear that by efflux of time, the appointment of the petitioner came to an end in August/September, 2012, when the extended term of the petitioners came to an end. Thereafter, the petitioners had no right to continue on the posts in question.
23. Though a prayer has been made for a direction to the opposite parties to regularise the services of the petitioners in pursuance of the order dated 31.5.2012 of the State Government. No such argument was advanced by the counsel for the petitioners at the time of hearing.
24. The petitioners have not urged before this court that the order of appointment issued in their case was not in the nature of a contract and the subsequent order extending the term of their appointment till August/September, 2012 was liable to be ignored and that the petitioners should be treated as persons regularly appointed in the Nigam and are entitled to continue till they attained the age of superannuation on the posts of which they are working. On the contrary it is the admitted case of the petitioners that they were appointed on contract basis and the extended period of their contract came to an end in August/September, 2012.
25. It is settled that an appointment in violation of rules or the Constitution is illegal and cannot be regularized. In paragraph 15 of the case reported in (1972) 1 SCC 409, R.N. Nanjundappa Vs T. Thimmiah & Anr, it has been held by the Apex Court as follows:
"If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
26. The case of R. N. Nanjundappa (supra) was cited with approval in Uma Devi's case (supra). Paragraph 15 of Uma Devi's case is quoted below:-
15. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate case, would have only the right to regularize 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."
27.Moreover in the present case, in view of the condition no. 1 of their appointment order dated 29.8.2011 and condition no. 10 of the agreements executed by the petitioners, the petitioners are estopped from claiming regular appointment or regularisation of their services.
Condition no. 1 of Appointment Order & Clause 10 of the Agreement are quoted below:
"1- lafonk ij fu;qfDr ds QyLo:i vH;FkhZ dk m-iz- ty fuxe esa fu;fer twfu;j baftfu;j ds in ij fu;qfDr gsrq fdlh Hkh izdkj dk nkok ekU; ugh gksxkA"
"10- bl vuqca/k ds QyLo:i m-iz- ty fuxe esa izFke i{k dk twfu;j bathfu;j ds in ij fu;qfDr gsrq fdlh izdkj dk nkok ekU; ugha gksxkA"
28. During the extended period of contract the services of all the petitioners were terminated by separate orders dated 16.5.2012. The termination orders dated 16.5.2012 were assailed by the petitioners in various writ petitions preferred by them in this Court. In writ petition no. 3201 of 2012 (S/S) on 12.6.2012 the following interim order was passed by this Court.
"List on 16.7.2012 by which date a detailed counter affidavit shall be filed by the opposite parties. Till that date the impugned order dated 16.5.2012 shall not be given effect to. Petitioners shall be allowed to continue in services and paid their due salary."
The benefit of the interim order dated 16.7.2012 was extended to all the petitioners in the respective writ petitions filed by them. It is on the strength of the interim orders mentioned above, the petitioners are still continuing in service.
29. It has been vehemently urged on behalf of the petitioners that the posts in question have been advertised in violation of the interim orders passed by this court. It has been submitted that the opposite parties were obliged to keep the posts on which the petitioners are working reserved for them. The submission made by the learned counsels cannot be accepted.
30. The interim orders passed in writ petition no. 3201 of 2012 (S/S) and other connected petitions, in no way restricts the power of the opposite parties to invite applications and make regular selections on the post on which the petitioners are working on the strength of the orders passed by this Court.
31. The petitioners are admittedly continuing in service on the strength of the orders passed by this Court in writ petitions preferred by the petitioners against the orders terminating their services. Paragraph 43 of Uma Devi case (supra) is a complete answer to the arguments of the learned counsel for the petitioners that the post on which the petitioners were working were protected by the interim orders passed by this court and the said post could not have been advertised. In paragraph 43 of the said report the Apex Court has observed as follows:-
"Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service."
32. By the advertisement dated 18.6.2011 applications were invited from candidates for making appointment on contract basis for doing the work mentioned therein. In the circumstances, there is no iota of doubt that a large number of candidates who were eligible to be appointed on the posts in question on regular basis must not have applied in pursuance of the said advertisement on account of the nature of appointment sought to be made by the Nigam.
33. Admittedly, the petitioners were appointed in pursuance of the advertisement dated 18.6.2011 on contract basis. The petitioners were thus appointed in the Nigam without issuing an advertisement inviting applications from all the eligible candidates and without holding a proper selection. The appointment of the petitioners was, thus, not a regular appointment under the Regulations.
34. Admittedly, the extended term of the petitioner service came to an end in August / September, 2012. There is no order extending the term of the petitioners beyond August/ September, 2012. In the circumstances this Court is constrained to hold that the petitioners had a right to continue in the Nigam till August / September, 2012 and not beyond that unless there was an order extending their services.
35. The petitioners are continuing on the strength of the interim orders passed by this court. In view of the nature of their appointment and the terms of their appointment letters and the agreement executed by them, the petitioners are estopped from claiming regular appointment or regularisation either at present or in future. The fact that they have been permitted to continue under the interim orders of this court also does not confer upon the petitioners any right of regularisation of their services.
36. The petitioners are admittedly continuing on the strength of the interim orders passed by this court. Unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. Merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules, it is not open to the court to prevent regular recruitment at the instance of contractual employees whose period of employment has come to an end. Merely because, the petitioners have continued under cover of an order of this Court, the petitioners would not be entitled to any right to be absorbed or made permanent in the service.
37. In facts and circumstances of the case, the petitioners are estopped from making claim for regular appointment as Junior Engineer (Civil) and Junior Engineer (Electrical/Mechanical). The challenge to the impugned notice dated 10.5.2013 and advertisement dated 12.5.2013 at the behest of the petitioners is not maintainable and is liable to be rejected as such.
38. Sri I.P. Singh learned Counsel appearing on behalf of Nigam has also brought to the notice of this Court an order passed in writ petition no. 6630 (s/s) of 2012, Utkarsh Singh versus State of U.P. & others. Sri Utkarsh Singh who was appointed as Assistant Engineer on contract basis has challenged the advertisement in question and a Division Bench of this Court has passed an order on 24.05.2012 permitting Sri Utkarsh Singh to continue in service till the month of August, 2012 or till the regular selected candidates resumed their duties which ever was earlier.
39. In view of the above there is no infirmity or illegality in the action of the opposite parties in making regular selection on the post of Junior Engineer (Civil) and Junior Engineer (Electrical/Mechanical). Consequently the challenge to the notice dated 10.05.2013 and the advertisement dated 12.05.2013 fails.
40. All the writ petitions are accordingly dismissed.
41. No order as to costs.
Order Date:14.11.2013 I.A. Siddiqui