Andhra HC (Pre-Telangana)
Secretary, A.P. Social Welfare ... vs Ch. Rama Devi on 8 February, 1996
Equivalent citations: 2000(6)ALT763
Author: M.H.S. Ansari
Bench: M.H.S. Ansari
JUDGMENT P.S. Mishra, C.J.
1. Heard learned Counsel for the appellants and learned Counsel for the respondent.
2. It is stated in the impugned judgment that averments made in the affidavit filed in support of the writ petition were not countered by the respondents-appellants. The averments mentioned in the impugned order are that the writ petitioner-respondent was appointed as Auxiliary Nurse-Midwife on 25-7-1989 by the District Collector, who was the appointing authority at that time and in-charge of the A. P. Social Welfare Residential Educational Institutions Society. She was sponsored by the Employment Exchange and was selected by the Selection Committee after holding interview. However, she was kept on daily wages. In the counter-affidavit, which is on the record, however, these averments appear to have been disputed in the following words:-
"It is not true to say that the petitioner was appointed through the procedure. In fact she was not appointed in accordance with the recruitmental procedure as per the Service Recruitmental Rules of the A. P. Social Welfare Residential Educational Institutions Society, 1987. The petitioner was taken as part-time Nurse in A. P. Social Welfare Residential School for Girls, Parkal on payment of remuneration of Rs. 10/-per session as a measure of expediency and in the interest of student community, pending recruitment of regular Staff Nurses. She was not appointed on regular basis in time-scale of pay in accordance with recruitmental procedure as prescribed in the Recruitmental Rules of A. P. Social Welfare Residential Educational Institutions Society, 1987. The petitioner was well aware of the fact that her services were taken on part-time basis on payment of Rs. 10/- per session. The petitioner was taken as part-time Nurse on payment of remuneration of Rs. 10/- per session (Rs. 20/- per two sessions i.e., morning and evening), pending recruitment of regular Staff Nurses. She was not appointed on regular basis in the time-scale of pay and as such, the question of regularisation of her services and allowing pay scales does not arise".
It is well settled that when a fact is disputed and it is required to be proved, the summary proceeding of a Writ Petition under Article 226 of the Constitution of India is not a proper proceeding. Recruitment to a service or a post in any undertaking or instrumentality or agency of the State, which undertaking, instrumentality or agency is a State for the purposes of Article 12 of the Constitution of India, has to comply with the requirements of Article 16(1) of the Constitution of India and Article 14 thereof. Any recruitment, which is made in violation of the recruitment rules, cannot be said to comply with the requirements of the rights under Articles 16(1) and 14 of the Constitution of India. Respondents-Appellants' clear averment in their return in the Writ Petition is that the writ petitioner-respondent was not recruited in accordance with the rules applicable to it. Thus, the clear stand before the Court on behalf of the appellants is that the writ petitioner-respondent has not been recruited in accordance with law. Courts have always been advised and taken care to avoid issuing a Mandamus or a direction to regularise any appointment in a service, which appointment has not been made in accordance with the prescribed procedure in this behalf. The reasons are not far to say that such appointments in exceptional cases may be found to go to a deserving person but invariably are made to give benefit to some near and dear or some one who has right connections at such level of power where law can be ignored and appointment as favour can be bestowed. The writ petitioner may have deserved the appointment and by giving to her only a daily-wage and part-time appointment injustice was done to her by the appellants. That, however, cannot be ascertained unless it is known that she qualifies and that she qualifies in competition with others, who also seek the appointment in the post which has been given to her. It is necessary for all conscientious people and the Courts cannot afford to give up the same to realise that if rule of law is not adhered to and arbitrary actions are sanctioned by the orders of the Court, that too in the nature of Mandamus, the first casuality will be the promise of the Constitution of India that every person should get equal protection of law and enjoy equality before law. It is for the said reason that we have our reservations in approving the directions issued by the learned Single Judge. The same are fit to be set aside and they are accordingly set aside.
3. We, however, do not want to deny to the writ petitioner-respondent the benefits which she should receive provided she is qualified for the appointment and provided, if recruitment rules are applied for selection, and she is found suitable.
4. We are, in the circumstances as above, inclined to order that the appellants shall consider the case of the writ petitioner-respondent and, in case she is found to fulfil all requisite qualifications, extend to her the regular appointment as contemplated in the Service Rules. In doing so, the appellants shall take care of the period of service rendered by the writ petitioner-respondent and fix such cut-off date for regularisation which in no manner causes prejudice to her interests.
5. With the directions as above, the appeal is allowed and the writ petition is dismissed. There shall be no order as to costs.