Andhra HC (Pre-Telangana)
K. Bangar Rao vs Director, A.P. Police Academy, ... on 25 April, 2001
Equivalent citations: 2001(3)ALD760, 2001(3)ALT706
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. The question which arises for consideration in this writ petition is as to whether the Andhra Pradesh (Regulation of Appointments to Public Services and Rationalisation of Staff Pattern and Pay Structure) Act, 1994 (Act No.2 of 1994) is applicable to the case of the petitioner.
2. The said question has been filed raised in view of the fact that in terms of proceedings in Rc.No.923/AE.1/APPA/95-97 dated 30-6-1997, the petitioner has been removed from service pursuant to the show-cause notice dated 4-4-1997.
3. The petitioner joined in the Republic Forge Company Ltd., a State Government undertaking, as casual employee in the year 1979. His services were regularised on 1-1-1982 in the category of Junior Assistant. He was also promoted to the post of Senior Assistant. The Company was facing financial crisis and on the verge of closure. Whereupon the Ministry of Finance and Planning, allegedly, addressed a letter to the Company calling for the list of surplus employees in the company whose services could be utilised in the Government Departments by letter dated 25-5-1991. The Police Academic allegedly addressed a letter to the Managing Director of the said company on 9-3-1995 requesting it to sponsor eligible and qualified surplus staff for appointment as Typist or Data Entry Operators. Pursuant thereto or in compliance thereof, the company notified the names of the surplus employees who fulfilled the requisite qualifications. The petitioner having been found eligible, allegedly, was appointed in the post of Typist in A.P. Police Academy.
4. On the ground of alleged irregularity in the said appointment, purported to be in contravention or Act No.2 of 1994, a direction was issued by the respondent No.1 herein to remove him from service. The petitioner was issued a show-cause notice on 4-4-1997. After considering the explanation submitted by him, by order dated 30-6-1997, he was removed from service. It appears that the petitioner had filed a mercy petition which had been rejected by an order dated 5-8-2000.
5. Questioning the order of removal from service, the petitioner filed OA No.7421 of 1997 before the A.P. Administrative Tribunal. The learned Tribunal held:
We are, therefore, unable to accept the contention of the learned Counsel for the applicant that appointment of the applicant by virtue of the circular dated 25-5-1991 issued by the Commissioner of Public Enterprises is in accordance with Rules and instructions. When once we come to the conclusion that the appointment of the applicant is contrary to the rules and regulations, the impugned orders have to be declared as valid orders. However, keeping in view the fact that the applicant has rendered service in the Department on his regular absorption, we direct the applicant to put in a mercy petition to the Government within a period of two weeks from the date of receipt of this order and if such a mercy petition is filed, the Government is directed to examine and pass appropriate orders thereon in accordance with rules and as per taw.
6. Mr. G. Vidyasagar, learned Counsel appearing on behalf of the petitioner submitted that the appointment of the petitioner having been made pursuant or in compliance of a policy decision dated 25-5-1991 of the Government, pursuant whereof the petitioner was employed in A.P. Police Academy, the learned Tribunal must held to have erred in arriving at the aforementioned finding. The learned Counsel would contend that as the name of the petitioner had been sponsored by the company and he having been appointed pursuant thereto and his services having been regularised, Act No.2 of 1994 cannot be said to have any application whatsoever.
7. The learned Government Pleader, on the other hand, would submit that the appointment of the petitioner was clearly contrary to Andhra Pradesh Prohibition of Absorption of Employees of State Government Public Sector Undertakings into Public Service Ordinance, 1997 (for short Ordinance, 1997) promulgated with effect from 26-11-1996 and the consequential enactment Act No.2 of 1998 made by the State Legislature.
8. It appears that on or about 25-5-1991, the Commissioner of Public Enterprises by a letter addressed to the Managing Directors of all Public Enterprises in the State issued certain guidelines as regards the absorption of services of surplus staff which inter alia are:
Guidelines for absorption of surplus staff:
A. For absorption into Public Enterprises:
1. The Public Enterprises should furnish to the Department of Public Enterprises the details of surplus staff viz., category, name, qualifications, age, date of birth, period of, employment, whether temporary or permanent, pay particulars with scale of pay, place of employment etc.
2. Public Enterprises should consult Department of Public Enterprises before making any recruitment to check whether any suitable candidates are available in surplus quota. Public Enterprises should give details of their requirement viz., category, number of posts, scale of pay whether temporary or permanent, qualifications experience required etc.,
3. Public Enterprises may give relaxation as to age, experience, and sponsorship from Employment Exchange while absorbing surplus personnel.
4. The surplus staff cannot claim protection as to last pay drawn, service benefits for past employment like carry forward of leave, LTC facility provision of any sort of claim in respect of previous employment.
5. The surplus staff shall for all purposes be taken as if they are directly recruited afresh in the category in which they are appointed and they will be governed by the rules of that enterprise in which they are appointed and they will be governed by the rules of that enterprise in which they have been absorbed.
B. For absorption into Government Department:
1. All Government Departments should before resorting to any recruitments consider first the list of surplus personnel available with Genl. Admn. (PE) Deptt.
2. The Government Departments may give relaxation of condition regarding sponsoring of the candidate by the Employment Exchange.
3. The Departments may also give relaxation of age equivalent to the number of years of service rendered by them in the Public Sector for purpose of computing maximum age.
4. The recruitees shall be treated as if they have been directly recruited afresh and will be governed by the rules governing the Department for all purposes. That is, no weightage shall be admissible for service in Public Enterprises.
5. No protection in respect of salary, seniority, leave, pension or any other condition of service will be given for the service rendered in the Public Enterprises.
6. The candidates should obtain all their terminal benefits from their respective corporation and join the Government as a fresh candidate in the cadre offered.
9. The Commissioner of Public Enterprises by circular letter dated 1-9-1994 addressed to the Managing Directors of all State Level Public Enterprises stated:
You are aware that the A.P. Scooters Limited, Republic Forge Company, A.P. Steels Limited and A.P. Small Scale Industries Development Corporation have been declared as sick units. Consequent on this, the surplus employees of the above said enterprises are approaching the Government for getting them absorbed either in State Level Public Enterprises or in Government Departments. In some cases, the competent authorities of the sick units are also requesting the Government by sending surplus lists of employees of their respective Corporations for accommodating them in Government Departments.
2. In the Circumstances, I am to request you to instruct your surplus employees not to approach directly to Government in General Administration (PE) Department, Secretariat, Hyderabad with a request to providing them a job either in a State Level Public Enterprise or in a Government Department. You are also requested to approach the concerned Administrative Department, in similar cases and seek the advice from them.
10. On or about 30-9-1994, the Commissioner of Public Enterprises and Ex-Officio Principal Secretary to Government by a Circular stated that:
It has come to the notice of Government that there are qualified surplus employees in the State level Public Enterprises and there is a need for such persons in the various Govt. Depts. The matter of absorption of employees of State Level Public Enterprises directly in the vacancies available or newly created posts in Government Departments is a complex one, as it infringes the rules of recruitment, eligibility of qualified candidates from the market and other procedural aspects.
2. Having regard to the above, pending a policy decision on the rights of a State Level Public Enterprises employees v/s-a-vis other candidates Government considers that one approach could be not to give a right of absorption to the surplus employees of State Level Public Enterprises but to allow as a rehabilitation measure, the State Level Public Enterprises employees to take his chance subject to his suitability being determined by the recruiting department. If State Level Public Enterprises employee is found suitable qualification-wise, relaxation of age and reference to Employment Exchange may be deemed to be given. No weightage for service in State Level Public Enterprises should be allowed. Terminal benefits should be obtained from the State Level Public Enterprises, they were serving and not made a matter of claim from the Department.
11. From a perusal of the said letter, it would appear that a policy decision was yet to be taken by the State and in the meantime only certain correspondences passed between the various authorities. It may be relevant to note that Government of Andhra Pradesh promulgated an Ordinate to prohibit absorption of employees of State Government Public Sector Undertakings into Public Service and for matters connected therewith which came into force from 26-11-1996. Prior thereto also an Ordinance to that effect was issued in the year 1996 being Ordinance No.25 of 1996.
12. Sections 2, 3 and 4 of Ordinance, 1997 reads thus:
2. Notwithstanding anything contained in any contract or agreement or any judgment, decree or order of any Court, Tribunal or any other authority or any order or proceedings of the State Government, or any officer of the State Government, no employee of a State Government Public Sector Undertaking shall be or shall ever be deemed to be entitled to absorption into Public Service from the date of commencement of this Ordinance only on the ground that such undertaking has become sick or is likely to become sick or is closed or is likely to be closed and accordingly,
(a) all orders issued by the Government or any other authority appointing any such employee to any post in Public Service on any such ground shall stand cancelled, with effect from the 30th November, 1996.
(b) no suit or other proceedings shall be instituted, maintained, or continued in any Court, Tribunal or any other authority, against the State Government or any person or other authority whatsoever for such appointment or absorption into public service; and
(c) no Court shall enforce any decree or order directing such appointment or absorption.
Explanation :--For the purpose of this section, the expression 'public service' means, services in any office or establishment of,
(a) the Government;
(b) a local authority;
(c) a Corporation or Undertaking wholly owned or controlled by the State Government;
(d) a body established under any law made by the legislature of the State whether incorporated or not, including a University; and
(e) any other body established by the State Government or by a society registered under any law relating to the registration of societies for the lime being in force, and receiving funds from the State Government either fully or partly for its maintenance or any educational institution whether registered or not but receiving aid from the government.
3. Notwithstanding anything contained in any contract or agreement or any judgment, decree or order of any Court, Tribunal or other authority or any order or proceeding of the State Government or any officer of the State Government, any supernumerary post created for appointment or absorption to any post in public service of any such employee on any such ground specified in Section 2 shall stand abolished with effect from the 30th November, 1996.
4. Nothing in this Ordinance shall disentitle any such employee to the benefits of any scheme of rehabilitation under the relevant orders issued by the Government from time to time.
13. It has not been disputed that no scheme of rehabilitation was in existence. No policy decision in terms of Article 162 of the Constitution of India was also taken in that regard.
14. As stated hereinbefore, the State enacted Act No.2 of 1994 regarding of regulation of appointments to Public Services and rationalisation of staff pattern and Pay Structures which came into force w.e.f. 25-11-1993.
"Public Service" has been defined in Section 2(vi) therefor to mean, services in any office or establishment of-
(a) the Government;
(b) a local authority;
(c) a Corporation or undertaking wholly owned or controlled by the State Government;
(d) a body established under any law made by the Legislature of the State whether incorporated or not, including a University and
(e) any other body established by the State Government or by a Society registered under any law relating to the registration of societies for the time being in force, and receiving funds from the State Government either fully or partly for its maintenance or any educational institution whether registered or not but receiving aid from the Government.
15. By reason of Section 3, daily wage appointments are prohibited and temporary appointments were stated to be regulated. Section 4 provides:
No recruitment in any public service to any post in any class, category or grade shall be made except, --
(a) from the panel of candidates selected and recommended for appointment by the Public Service Commission/ College Service Commission where the post is within the purview of the said Commission;
(b) from a panel prepared by Selection Committee constituted for the purpose in accordance with the relevant rules or orders issued in that behalf and
(c) from the candidates having requisite qualification and sponsored by the Employment Exchange in other cases where recruitment otherwise than in accordance with clauses (a) and (b) is permissible.
Explanation :-- For the removal of doubts it is hereby declared that nothing in this section shall apply to compassionate appointments made in favour of son/daughter/spouse of any person employed in public service who dies in harness or who retires from service on medical grounds, in accordance with the relevant orders issued from time to time.
16. In terms of Section 5 of the said Act, the drawing authority has been prohibited from signing any salary bill of the appointee concerned. Section 6 provides:
6(1) Where any holder of an elective office or any officer or authority makes any appointment in contravention of the provisions of this Act, --
(a) it shall be deemed in the case of the holder of an elective office that he has abused his position or power and accordingly competent authority shall initiate proceedings for his removal; and
(b) in the case of an officer or authority it shall be deemed that he is guilty of misconduct and the competent authority shall initiate action under the relevant disciplinary rules.
(2) In addition to taking action under sub-section (1) the pay and allowances paid to the person whose appointment is in contravention of the provisions of this Act shall be deemed to be an illegal payment and a loss to the Government or, as the case may be, to the concerned instruction and the same shall be recoverable by surcharging the same under the Andhra Pradesh State Audit Act, 1989 against the person, officer or authority who makes such appointment in contravention of the provisions of this Act or where such surcharge is not possible under the said Act, in accordance with such manner as may be prescribed including as arrears of land revenue.
17. Section 7 provides bar for regularisation of services. Section 9 provides for abatement of claims. Section 10 prohibits power for creation of any new post in any office or establishment relating to the public service without the previous sanction of the competent authority. Section 14 provides for penalty for abettors. Section 15 provides for offences by Company. Section 17 provides a non obstante clause which is of wide amplitude.
18. A bare perusal of the statements of objects and reasons appended thereto, it appears therein that it was considered that irregular appointments had been adversely affecting the interests of several thousands of unemployed persons who had registered their names in the Employment Exchanges and awaiting their turn for orders as also the interests of Scheduled Castes, Scheduled Tribes and Backward" Classes.
19. An appointment which is contrary to the provisions of law would be a nullity.
In West Bengal Primary Education v. State of West Bengal and others, 1997 (1) CLJ 165, a Division Bench of the Calcutta High Court held :
The Second Principal question framed by the learned trial Judge must also be answered in negative in view of the fact that the teachers when so appointed having not been appointed under any revision of law or upon following any rule conforming to the provisions of Articles 14 and 16 of the Constitution and their services being not protected under any statute, question of their regularisation does not arise. The Bench in several cases including in (28) Registrar of North Bengal University v. Biplab Roy and others, in FMA No.159/93 disposed of on 24-1-1996, inter alia, observed:
The Supreme Court in a number of decisions categorically held that regularisation cannot be a mode of appointment. Reference in this connection may be made to B.N. Nagrajan v. State of Karnataka and R.N. Nejundeppa v. J. Thimmaiah reported in 1972 (2) SCR page 749 = 1972 SLR 94 (SC) = 1992 Labour & Industrial Cases 618, which have recently been followed by the Supreme Court in V. Shrinivas Reddy v. Govt. of A.P. and others, ; S.K. Jamaluddin v. State of West Bengal reported in 1995 Lab. IC 1853. Similar view has been taken in Ashok Kumar Pal v. State of West Bengal; CO No.4244 (S) of 1995 disposed of on 25-4-1995 and reported in 1995 Lab. IC (NOC) 319; Narendra Nath Palui v. State of West Bengal , Bishnudeo Chowdhuary v. State of Bihar and others, reported in 1995 (1) PLJR 123 (Pat) (FB). This aspect of the matter has also been considered by various Division Benches of the Patna High Court amongst other in 1994(1) PLJR 68; 1995(2) PUR 309 and 1995(2) PLJR 573.
In Ziaul Islam v. State of West Bengal, 1999 (1) CLT (HC) 509, a Division Bench of the Calcutta High Court held as under:
Rule 8 of the 1991 Rules aforementioned provides for the manner in which the Primary School Council would fill up the number of vacancies. The said procedure provide that a panel for eligible candidates be prepared and for the said purpose the Employment Exchange would be requested to send the names of the candidates (trained or untrained) who have requisite qualification and in order of seniority of regulation.
Rule 9 provide for the selection process in great details. The said Act and the Rules provides for a complete code in the matter of recruitment of teachers. It is now a well settled principle of law that if some matters are included by reason of a statute, other matters by necessary implication are excluded. No other procedure for selection having been prescribed, the District Primary School Council who are creature of the statute, have no other option but to follow the provisions of the said rules in the matter of recruitment of teacher. They cannot deviate therefrom. We are conscious of the fact although seemingly they appear to be mandatory in nature but in certain circumstances they may be held to be directory.
The Division Bench in paragraph 15 further held:
It is now well settled by the decision of the Supreme Court of India that recruitments have to be made in terms of the statutory rules.
And in paragraphs 17 and 18, it was held as under:
It is now also a well settled principle of law that any appointment in violation of the recruitment rules will be void.
Furthermore, it is further well settled that no recruitment can be made in violation of or in derogation of the provision of recruitment rules. Such recruitment rules framed in consonance with the principle laid down under Articles 14 and 16 of the Constitution of India. Reference in this connection may be made to reported in JT 1996 (2) SC 435 and .
20. Yet again in Biman C.H. Karmakar v. State of West Bengal and others, 2000 Lab.IC 170, the Calcutta High Court held:
It is no longer permissible for any person to contend that any appointment can be or a Court can direct appointment of a statutory rules. If the statutory rules operate in the field of recruitment such rules must strictly be adhered to and the authorities concerned are necessarily bound thereby. Any action on their part in appointing a teacher in deviation thereof would render the appointment a nullity. This aspect of the matter is squarely covered by several Supreme Court decisions in Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra , E. Ramkrishnan v. State of Kerala , R.N. Nanjudappa v. T. Thimmaiah reported in 1972 2 SCR 799 = (1972 Lab 1C 618) = 1972 SLR 94 (SC), B.N. Nagrajan v. State of Karnataka reported in (1979) 3 SCR 937; 1979 Lab 1C 1206); V. Sreenivas Reddy v. Government of A.P., (1994) 6 JT (SC) 461 = (1995 Lab 1C 319; Lalan Kumar Singh v. The State of Bihar reported in (1995) 2 Pat LJR 309; upheld in Ashwini Kwnar v. State of Bihar , J.K. Public Service Commission v. Dr. Nrinder Mohan . Suffice it to state that this aspects of the matter is also covered by several Division Bench decisions and Full Bench decisions of this Court. Reference in this connection may be made to Director of Public Instructions of W.B. v. Dr. Ashis Pal reported in (1998) 2 Cal.HN 241, Zaul Islam v. State of West Bengal reported in 1991 (1) Cal. LT (HC) 509 and a Full Bench decision of this Court in Debasish Dutta v. State of West Bengal (1978) 2 Cal.LJ 1, apart from the decision in West Bengal Board of Secondary Educations v. State reported in (1997) 1 CaLLJ 165. The entire case of action of the writ petitioners based on some circulars which stand repealed after coming into force of the said "Act and the Rules.
21. In Sairindhri Dolui v. State of West Bengal, 2000 (1) SLR 803, a Division Bench of the Calcutta High Court noticed:
Furthermore, it is a well settled principles of law that there can be no estoppel against statute. See Dr. Ashok Kumar Maheswari v. State of U.P. and another as also in Shabi Construction Co., Ltd. v. City and Industrial Development Corporation, wherein the law has been laid down in the following terms :
"Whether Promissory Estoppel, which is based on a 'promise' contrary to law can be invoked already been considered by this Court in Kansika Trading v. Union of India, (1995) 1 SC 274 as also in Shabi Construction Co. Ltd. v. City and Industrial Development Corporation, , wherein it is laid down that the Rule of Promissory Estoppel "cannot be invoked for enforcement of a 'promise' or a 'declaration' which is contrary to law or outside the authority or power of the Government or the person making that promise.
Applying the above principles to the instant case, even if it is accepted that the State Government of the Director, Medical Education and Training, assured the appellant or any of his colleagues that they would be promoted to the posts of Lecturer, such a 'promise' cannot be enforced against the respondents as the avenue of promotion for demonstrators to the post of Lecturers was not provided either under the statute or any executive instruction. Moreover, if the post of Lecturer was filled up by promotion of Demonstrator, it would defeat the existing mode of recruitment, namely that it can be filled up by direct recruitment only and not by promotion. It may also be stated that the appellant did not make any clear, sound and positive averments as to which officer of the Government, when and in what manner gave the assurance to the appellant or any of his colleagues that they would be promoted as Lecturers. It was also not stated that the appellant had, at anytime, acting upon the promise, altered his position, in any manner, specially to his detriment. Bald pleadings cannot be made the foundation for invoking the Doctrine of Promissory Estoppel".
22. In Tarak Chowdhury v. State of West Bengal, 2000 (2) SLR 445, of which one of us viz., S.B. Sinha, CJ., was a Member held:
It has not been disputed that the petitioner was appointed on an ad hoc basis. At the time of his appointment recruitment rules framed in terms of the proviso appended to Article 309 of the Constitution of India had not been followed. The State while granting appointment to a person is not only bound to follow the recruitment rules made in terms of the proviso appended to Article 309 of the Constitution of India but is also bound to give effect to the provisions of Articles 14 and 16 of the Constitution of India. No right far less any enforceable right flows from such illegal appointments. The recruitment rules, inter alia, provide for grant of equal opportunity to be considered for appointment to all eligible candidates. A person who is appointed through back-door cannot claim permanence only because he had been working for sometime. Reference in this connection may be made to the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and others several decisions of the Apex Court following the same. It is further well known in view of several decisions of the Apex Court that only in irregular appointment can be regularised and not an illegal appointment. It is further well settled that regularisation cannot be a mode of recruitment. (See R.N. Nanjundappa v. T. Thimmaiah and B.N. Nagarajan v. State of Karnataka which decisions have been considered by the Apex Court in V. Sreenivasa Reddyand others v. Government ofAndhra Pradesh and others . It is now also well settled in view of the recent decisions of the Apex Court in State of M.P. and others v. Dharam Bir that the status of a person cannot be changed with the passage of time. A person who was appointed on temporary or ad hoc basis, thus cannot claim the status of a permanent servant only because he had worked for sometime. The said decision along with other decisions had been considered by this Court in a large number of cases. Reference in this connection, however, may be made to Biman Ch. Karma/car v. State of West Bengal, reported in 1999(2) CHN 289 and West Bengal Essential Commodities Supply Corporation Ltd. v. Md. Sarif, reported in 2000 (1) CHN 210 = [2000 (2) SLR 229 (Cal)]. The aforementioned circular letter dated 3rd August, 1979 is not a statute. Even a policy decision cannot be adopted in derogation of a statutory rules. Even the said purported memorandum dated 3rd August, 1979 is not an executive instruction within the meaning of Article 162 of the Constitution of India".
23. This aspect of the matter is also covered by a Division Bench decision of this Court in WA No.526 of 1999 dated 25-1-2001 wherein it has been held:
It is well a settled principle of law that in terms of Article 16 of the Constitution of India, before any appointment is made by a State, all eligible candidates to hold such post, must be considered therefor. Article 16, which is an extension to the principle of equality, as envisaged under Article 14 of the Constitution of India is required to be read conjointly.
It is also not in dispute that by appointing the appellant, all norms applicable for making appointments to public posts, was given a go by. The appellant was appointed as Lecturer on the basis of personal choice made by the aforementioned Prof. Kakarla Subba Rao. Neither any advertisement was issued nor any application was called for from the eligible candidates for filling up the vacancy, and thus excluding consideration of the cases of other eligible candidates, and to top it all, there did not exist any vacant post.
It is not possible for this Court to accept the submission of the learned Counsel for the appellant that the appointment of appellant at best can be said to be an irregular one, which may be directed to be regularised having regard to the doctrines of Legitimate Expectation and Promissory Estoppel.
It is now a well settled principle of law that any appointment made in violation of the provisions of the Constitution of India or a statute or the rules framed thereunder, would be a nullity. The appellant has no right, far less, any legal right, to be appointed as Lecturer, and hold/continue to hold such post. No right can be conferred upon a person, who has gained entry through back door. In other words, before a person becomes legally entitled to hold/ continue in a civil post, the appointment must be made in terms of the provisions of the Constitution as also the recruitment rules framed with regard thereto.
It was further held:
So far as the submission of the learned Counsel for the appellant to the effect that the doctrines of Legitimate Expectation and Promissory Estoppel would apply, suffice it to point out that unless a person establishes a legal right in himself or pleads and proves violation of any statutory rules and the provisions of the Constitution of India, no justiciable right by applying the doctrines of Legitimate Expectation, accrues. It is also well settled that there cannot be any estoppel against a statute, far less the provisions of the Constitution of India.
Before the doctrines of Legitimate Expectation and Promissory Estoppel can be given effect to, the Court must have sufficient materials before it to come to a definite conclusion that a promise had been made by a person competent therefor, and whereupon the appellant relied upon and changed his position Such is not the position in the instant case. Admittedly, at a point of time, when the purported offer was made to the appellant, the Director did not have any authority to make such an offer in view of the fact that an advertisement for filling of the said post was issued, and in terms whereof the names of all eligible candidates were also called for from Employment Exchange The Director had the requisite knowledge that for the purpose of creation of post, approval of the Executive Committee as well as the Governing Council is necessary, which is reflected from the letter dated 16-9-1997 written by the Director to the appellant. Even the post of Clinical Assistant was to be filled up through a process of selection in terms of the advertisement issued in regard thereto. As indicated previously, in the instant case, the appellant was appointed on the basis of private negotiations, which is alien and unknown in law, and that too even before the expiry of the last date for filing such applications by the eligible candidates. It is really surprising that an illegality committed by the State authority did not stop there, but went on till the appellant was invited to hold the post of Lecturer, which was neither in existence nor was sanctioned.
24. As indicated hereinbefore, a scheme of regularisation is yet to be framed. Neither the statute nor the statutory rules governing the field were amended. The various circular letters issued by the Commissioner of Public Enterprises did not have the force of law nor could they be issued contrary to the statutory rules framed in exercise of the proviso to Article 309 of the Constitution of India. The constitutionality of the said ordinance and the Act are not in question. In the aforementioned situation, even the principles of promissory estoppel or legitimate expectation would not arise as duty and legal promise are sine qua non for invoking both the aforementioned doctrines.
25. For the reasons aforementioned, we find no merit in the writ petition which is accordingly dismissed. There shall be no order as to costs.