Patna High Court - Orders
Mahesh Prasad Singh vs The State Of Bihar & Ors on 9 April, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7247 of 2011
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Mahesh Prasad Singh, son of late Ramkrit Singh, resident of Village-
Gangapur Gorsar, P.S. Ghoshi, District- Jehanabad.
.... .... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary, Human Resources
Department, New Secretariat, Government of Bihar, Patna
2. The Director, Primary Education, New Secretariat, Government of
Bihar, Patna
3. The Regional Deputy Director of Education, Magadh Division, Gaya.
4. The District Education Officer, Gaya.
5. Head Master, Government Basic School, Jethian, Gaya.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Jai Prakash Verma, Advocate.
For the Respondent/s : Mr. Rajiv Roy, GP5,
Mr. Suresh Kumar, AC to GP 5.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV ORDER
12 9.4.2014Heard learned counsel for the petitioner and learned counsel for the State.
2. In the present writ petition the petitioner is challenging the order of termination issued vide Memo No. 78 dated 27.1.2011, passed by the Regional Deputy Director, Magadh Division, Gaya by which services of the petitioner has been dispensed with.
3. Primarily the grievance that has been raised by the petitioner is that his appointment was not illegal rather irregular and without giving opportunity of hearing his services has been terminated which violates Article 311 of the Constitution of India. So much so the petitioner was appointed Patna High Court CWJC No.7247 of 2011 (11) 2 by the Divisional Establishment Committee against sanctioned post with requisite qualification of matric trained and as such he cannot be graded to be appointed illegally.
4. . From the record it appears that an advertisement was published for the appointment of assistant teacher but no appointment was made against the advertisement. It also appears that petitioner and 13 others were appointed on different dates by the Regional Deputy Director of Education, Magadh Division, Gaya. Illegal appointments made by the then Regional Deputy Director of Education was brought to the notice of the Director, Administration-cum-Deputy Director and on consideration of the same a general direction was given for stoppage of salary including direction was given not to take work from any persons who were appointed by Dr. Diwakar Pathak.
5. In pursuance thereof the Headmaster of Government Basic School, Jethian, Gaya informed this fact to the petitioner and later on a show-cause was issued to him and he was asked to remain present along with the record in his support. He appeared and participated there in the proceeding and produced relevant records. He has stated that he was selected after due process of law as he was interviewed but he Patna High Court CWJC No.7247 of 2011 (11) 3 could not produce any letter to show that he was called upon for interview and thereafter the Regional Deputy Director, Magadh Division. Gaya has concluded that appointment was obtained de hors to the rule of appointment and terminated the services of the petitioner which is under challenge before this Court.
6. Learned counsel for the petitioner submits that petitioner possesses requisite qualification, appeared in the interview board, selected by the competent person and as such his appointment cannot be graded as illegal appointment at best it can be a irregular appointment. So much so before dispensing with service on the ground of illegal appointment no proper proceeding was initiated or conducted as provided under Article 311 of the Constitution of India. In support his contention he has relied on the following judgments: (i) State of Karnataka and others Vs. M. L. Kesari and others, reported in (2010)9 SCC 247, (ii) Secretary, State of Karnataka and others Vs. Uma Devi (3) and others, reported in (2006)4 SCC 1, (iii) Sitendra Kumar Singh Vs. State of Bihar & others, reported in 2003(4) P.L.J.R. 282,
(iv) Nandu Singh Vs. The State of Bihar and others, reported in 2010(1) BBCJ 550 and (iv) L.P.A. No. 29 of Patna High Court CWJC No.7247 of 2011 (11) 4 2010.
7. It has been submitted by the counsel for the petitioner that other persons have been appointed by Dr. Diwakar Pathak was visited with the identical order. They challenged their orders before this Court and this Court allowed their writ petitions and asked the respondents authorities to allow them to work and pay their admissible salary and as such he should also be given similar benefit as has been directed to others. It appears that petitioner has approached this Court in C.W.J.C. No.5258 of 2007 and this Court disposed of the writ petition with the direction to decide the representation expeditiously in accordance with law.
8. In pursuance thereof the petitioner was asked to appear before the Regional Deputy Director of Education, Mahadh Division, Gaya and it was found that appointment obtained by petitioner through the Dr. Diwakar Pathak was illegal. His termination from the service has been up held. Accordingly representation of petitioner was also disposed of.
9. Learned counsel for the State submits that petitioner was not appointed following due process of law as there was no advertisement for the post, no letter of interview was given to him, there was no roster clearance and preparation of panel Patna High Court CWJC No.7247 of 2011 (11) 5 was not done by the then Dr. Diwakar Pathak who has not only appointed the petitioner but he has altogether appointed 14 persons in one row and their services have been terminated by the competent person too. He has further submitted that the entry of the petitioner was completely illegal and the same was done by the back door method and requirement of law as provided under Article 311 of the Constitution is not required to be followed. In support of his contention he has relied on the judgment of the Full Bench in the case of Ram Sevak Yadav Vs. The State of Bihar & others, reported in 2013(1) PLJR 964.
10. In reply learned counsel for the petitioner has relied on the judgment in the State of Karnataka and others Vs. M.L. Kesari and others, reported in (2010) 9 SCC 247 and put a emphasis if the posts were available any deviation in the process of selection will only be called as irregular appointment and they cannot be picked up and be thrown without following due process of law.
11. The issue of appointment through back door has been considered in long line of cases and has been held that any appointment de hors to the rule and regulation is violative of Articles 14 and 16 of the Constitution of India, such Patna High Court CWJC No.7247 of 2011 (11) 6 violation goes to the root of the matter, persons appointed in such manner derive no right to post, his service can be discontinued without following Article 311 of the Constitution if it is fraudulent and illegal. Even in case of regularizing, the services of third grade employee, if the process was not followed properly the Court held, those engagement or absorption is completely illegal, violative of Articles 14 and 16 of the Constitution of India. In the case of Uma Devi (Supra) the Hon'ble Supreme Court has put emphasis of compliance of Articles 14 and 16 of the Constitution of India in the matter of appointment. The Court has laid emphasis even in the matter of regularization which is not mode of appointment provisions of Articles 14 and 16 of the Constitution of India cannot be given go by. The extent of power of the State to frame rule for regularisation of the service came up for consideration in the case of Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and others, reported in 2006(2) SCC 482 which are as follows:
"12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for 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. Patna High Court CWJC No.7247 of 2011 (11) 7 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 judging 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.
13. Article 309 lays down that subject to the provisions of the Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State. The proviso to this Article confers power upon the President or the Governor, as the case may be, to make rules regulating the recruitment and the conditions of service of persons appointed to services and posts in connection with the affairs of the Union or the State. Article 311 affords several protections to persons employed in civil capacities under the Union or a State. In view of clause (2) of this Article, holder of a civil post under the Union Patna High Court CWJC No.7247 of 2011 (11) 8 or a State cannot be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and he is given a reasonable opportunity of being heard in respect of those charges.
19. It, therefore, follows that employment under the Government is a matter of status and not a contract even though the acquisition of such a status may be preceded by a contract, namely, an offer of appointment is accepted by the employee. The rights and obligations are not determined by the contract of the two parties but by statutory rules which are framed by the Government in exercise of power conferred by Article 309 of the Constitution and the service rules can be unilaterally altered by the rule making authority, namely, the Government.
21. It is neither pleaded nor there is any material to show that the appointment of respondent No. 1 had been made after issuing public advertisement or the body authorized under the relevant rules governing the conditions of service of Drugs Inspectors in the Union Territory of Daman and Diu had selected him. His contractual appointment for six months was de hors the rules. The appointment was not made in a manner which could even remotely be said to be compliant of Article 16 of the Constitution. The appointment being purely contractual, the stage of acquiring the status of a Government servant had not arrived. While working as a contractual employee respondent No. 1 was not governed by the relevant service rules applicable to Drugs Inspector. He did not enjoy the privilege of availing casual or earned leave. He was not entitled to avail the benefit of general provident fund nor was entitled to any pension which are normal incidents of a Government service. Similarly he could neither be placed under suspension entitling him to a suspension allowance nor he could be transferred. Some of the minor penalties which can be inflicted on a Patna High Court CWJC No.7247 of 2011 (11) 9 Government servant while they continue to be in Government service could not be imposed upon him nor he was entitled to any protection under Article 311 of the Constitution. In view of these features it is not possible to hold that respondent No. 1 was a Government servant."
12. The Court also held that there should be strict conformity with the recruitment not at the stage of initial appointment but also in promotion. There can be no violation of fundamental rule at the time of appointment of recruitment. Appointment can be made after proper advertisement inviting application from eligible candidates and holding of selection by a body of expert or a specially constituted committee where members are fair and impartial.
13. Similar type of issue came up for consideration before the Hon'ble Supreme Court in the case of R.S. Garg Vs. State of Uttar Pradesh and others, reported in 2006 LIC 3997. The Hon'ble Supreme Court has endorsed the view that has been taken in Uma Devi (supra). In paragraph 21 the court has held that an appointment de horse the Rules would render the same illegal and not irregular and further held, adherence to the rule of equality in the public employment is a basic feature of our constitution and since equality before law is the core of our constitution, the Court would certainly be disabled from passing an order upholding an action violation of Article Patna High Court CWJC No.7247 of 2011 (11) 10 14 or in ordering the overlooking of the need to comply with requirements of Article 14 read with Article 16 of the Constitution of India. The Court has further said 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 continuation, if the original appointment was not made by following a due process of selection as envisaged by relevant rules. The Court has laid emphasis of strict compliance of recruitment rules for both direct recruit and promotee, there can be no relaxation of the basic fundamental rule. Even State cannot make or issue any executive instructions by way of regularization of such persons it would be in violation of Article 309 of the Constitution as well as of equality clause of Articles 14 and 16 of the Constitution. It will be apt to quote paragraph nos. 13, 14 and 15 of the aforesaid judgment:
"13. It is not disputed that even at the time of regularizing the services of the 3rd respondent the matter was not referred to the Public Service Commissions, although, for the purpose of disposal of this matter, it may not be necessary to delve deep into the question as regards the validity or otherwise of the said action on the part of the State of U.P., we may notice that a Constitution Bench of this Court in Secretary, State of Karnataka & Ors. vs. Umadevi & Patna High Court CWJC No.7247 of 2011 (11) 11 Ors. [2006 (4) SCALE 197], has emphasized on compliance of requirements of the constitutional scheme in making the appointments as adumbrated in Articles 14 and 16 of the Constitution of India. The Court emphasized that even in the matter of regularization of service the provisions of Articles 14 and 16 of the Constitution cannot be given a complete go-by. The extent of the power of the State to make relaxation of the rules also came up for consideration of the Constitution Bench. The Constitution Bench referred to a recent decision of this Court in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela & Ors. [200 (2) SCLAE 115], wherein it was observed:
"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 judging 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 complete Patna High Court CWJC No.7247 of 2011 (11) 12 would violate the guarantee enshrined under Article 16 of the Constitution."
14. In Suraj Parkash Gupta & Ors. vs. State of J & K & Ors. [(2000) 7 SCC 561], this Court opined:
"The decision of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment."
15. Even the State cannot make rules or issue any executive instructions by way of regularization of service. It would be in violation of the rules made under Article 309 of the Constitution of India and opposed to the constitutional scheme of equality clauses contained in Articles 14 and 16.
14. The Hon'ble Supreme Court again examined the issue of illegal appointment in the case of State of Bihar Vs. Upendra Narayan Singh and others, reported in 2009 (4) PLJR (SC) 73. In this case the court has gone to the history of illegal appointment and regularization of service. The Hon'ble Supreme Court has examined what was prevalent at the earlier time in the United State of America. Similar situation was there is called spoil system and very deeply considered the result of such appointment and the court in paragraph 14 has led emphasis that the appointment to any post under the State can only be made after a proper advertisement Patna High Court CWJC No.7247 of 2011 (11) 13 inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of the 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 employment exchange where eligible candidates get their names registered any appointment made de hors to above is not sustainable in law as it would violates the Article 16 of the Constitution of India.
15. In recent Full Bench judgment in the case of Ram Sevak Yadav Vs. State of Bihar and others, reported in 2013(1) PLJR 964 has considered all previous judgments including Uma Devi (supra) and the Full Bench has made deep analysis of Uma Devi (supra) and M.L. Kesari (supra) and culled out difference which would be the illegal appointment and which class of appointment would be qualified as irregular appointment. It will be apt to quote paragraph nos. 19, 24, 32 and 43:
Patna High Court CWJC No.7247 of 2011 (11)14
19. The word "illegal and irregular" have different connotations. The former denotes an action contrary to law from the very inception making it void ab-initio.
The latter denotes rudimentary compliance with some procedures but with infractions which could be remedied. Reiterating the same in (Uma Devi) (supra) it was held:-
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore vs. S.V. Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N. Nanjundappa vs. T. Thimmiah this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment This Court stated:-
"Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. 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 regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Regularisation 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."
16. In B.N. Nagarajan vs. State of Karnataka this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and Patna High Court CWJC No.7247 of 2011 (11) 15 are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation."
24. The Constitution Bench in (Uma Devi) (supra) denying the right of automatic regularisation to daily wage, casual and temporary employees held at paragraph 43 Ed.-Para 34 of PLJR as follows:-
"43. 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 Patna High Court CWJC No.7247 of 2011 (11) 16 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. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, 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 the 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. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." (Emphasis added)
32. In M.L. Kesari (supra) it was observed at paragraph 7 as follows:
"7. It is evident from the above that there is an exception to the general principles against "regularisation-enunciated in Uma Devi (3), If the following conditions are fulfilled:Patna High Court CWJC No.7247 of 2011 (11) 17
(i) The employee concerned should have worked for 10 years or more In duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or Its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.
(ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection such appointments are considered to be irregular." (Emphasis added)
43. We therefore sum up our conclusions and answer the reference as follows:-
(A) Uma Devi (supra) prohibits regularisation of daily wage, casual. ad-hoc and temporary appointments the period of service being irrelevant;
(B) An illegal appointment void abinitio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under any circumstances.
(C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so it was made on a vacant sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the candidate possessed the eligibility qualifications for a regular appointment to the post.
(D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without Intervention of any court orders."Patna High Court CWJC No.7247 of 2011 (11) 18
16. The Hon'ble Supreme Court has considered this issue of holding enquiry in case of illegal appointment in the following cases: (1) R. Vishwanatha Pillai Vs. State of Kerala and others, reported in (2004) 2 SCC 105 Para 15. Any appointment obtained by fraud is nullity, cannot claim holding of civil post and cannot claim protection of Articles 311 of the Constitution of India. It will be apt to quote paragraph 15 of the said judgment:
"15. This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void Patna High Court CWJC No.7247 of 2011 (11) 19 from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all."
(2) State of Jharkhand and others Vs. Manshu Kumbhkar, reported in (2007) 8 SCC 249, Paragraph nos. 9, 11 and 12 (3) Nagendra Chandra and others V. State of Jharkhand and others, reported in (2008) 1 SCC 798 (4) Union of India and another Vs. Arulmozhi Iniarasu and others, reported in 2011 (4) PLJR 83 (5) Indian Drugs and Pharmaceuticals Ltd. Vs. Workmen, reported in (2007)1 SCC 408, (6)Indian Drugs and Pharmaceutical Ltd., State of U.P. Vs. Desh Raj, reported in (2007) 1 SCC 257 and (7) State of M.P. and others Vs. Lalit Kumar Verma, reported in (2007) 1 SCC 575. 17 It will be apt to quote the judgment of Hon'ble Supreme Court in the case of State of U.P. and others V. Patna High Court CWJC No.7247 of 2011 (11) 20 U.P. State Law Officers Association and others, reported in (1994)2 SCC 204. In paragraph 19 it has been held " This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door."
18. Similar issue comes for consideration before Hon'ble Supreme Court in the case of Renu and others Vs. District and Sessions Judge, Tis Hazari and Anr. (Civil Appeal No.979 of 2014) and the Court held that any appointment without following due procedure is void and not sustainable in law, it will be appropriate to quote paragraph nos. 8 to 14 of the aforesaid judgment:
"8. As Article 14 is an integral part of our system, each and every state action is to be tested on the touchstone of equality. Any appointment made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors. etc.., AIR 1992 SC 2130; Prabhat Kumar Sharma & Ors. v. State of U.P. & Ors., AIR 1996 SC 2638; J.A.S. Inter College, Khurja, U.P. & Ors. v. State of U.P. & Ors., AIR 1996 SC 3420; M.P. Housing Board & Anr. v. Manoj Shrivastava, AIR 2006 SC 3499; M.P. State Agro Industries Development Corporation Ltd. & Anr. v. S.C. Pandey, (2006) 2 SCC 716; and State of Madhya Pradesh & Ors. v.Patna High Court CWJC No.7247 of 2011 (11) 21
Ku. Sandhya Tomar & Anr., JT 2013 (9) SC 139.
9. In Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216, a larger Bench of this Court reconsidered its earlier judgment in Union of India & Ors. v. N. Hargopal & Ors., AIR 1987 SC 1227, wherein it had been held that insistence of requisition through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. However, due to the possibility of non sponsoring of names by the employment exchange, this Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto, it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. The Court further observed:
"In addition, the appropriate department.....should call for the names by publication in the newspapers having wider circulation and also display on their office notice ...and employment news bulletins; and then consider the case of all candidates who have applied. If this procedure is adopted, fair play would be sub served. The equality of opportunity in the matter of employment would be available to all eligible candidates."
(Emphasis added) (See also: Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; and Kishore K. Pati v. Distt. Inspector of Schools, Midnapur & Ors., (2000) 9 SCC 405).
10. In Suresh Kumar & Ors. v. State of Haryana & Ors., (2003)10 SCC 276, this Court upheld the judgment of the Punjab & Haryana High Court wherein 1600 appointments made in the Police Patna High Court CWJC No.7247 of 2011 (11) 22 Department without advertisement stood quashed though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.
11. In Union Public Service Commission v. Girish Jayanti Lal Vaghela & Ors., AIR 2006 SC 1165, this Court held:
"........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 judging the inter se merit of candidates who have applied in response to the advertisement made............... Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution...."
(Emphasis added)
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop.Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 as under:
"(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in Patna High Court CWJC No.7247 of 2011 (11) 23 particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (4) Those who come by back-door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside."
13. A similar view has been reiterated by the Constitution Bench of this Court in Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, observing that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity.
"Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment". The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
14. In State of Orissa & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, this Court dealt with the constitutional principle of providing equality of opportunity to all which mandatorily requires that Patna High Court CWJC No.7247 of 2011 (11) 24 vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all eligible candidates; thereby the right of equal opportunity is effectuated. The Court held as under:-
"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."
19. The State in the counter affidavit in paragraph 5 it has been specifically stated that the petitioner was appointed without publication of advertisement, without calling for an interview, without clearing roster as well as making panel and as such the petitioner's appointment can be branded as an illegal appointment. In paragraph 6 it has been stated that petitioner cannot be said to have been appointed against the Patna High Court CWJC No.7247 of 2011 (11) 25 advertisement issued in the year 1988 by the office of the Director, Primary, Gaya, namely, Dr. Diwakar Pathak and also in paragraph 7 it has been stated that Director, Administration-cum-Deputy Secretary, Education Department, Bihar, Patna vide letter dated 14.1.2003 issued blanket order for termination of services of employees having been appointed by Dr. Diwakar Pathak. It has further been stated that before termination of services of the petitioner he was asked to appear before the authority and he was given full chance of hearing to satisfy that his appointment was done after following due process of law as he could not produce any material to substantiate his claim that he was appointed legally after following due process of law. As could not produce material to substantiate his claim accordingly he was terminated from service. In paragraph 7 of the supplementary counter affidavit it has been stated that all the persons who were appointed by the then Dr. Diwakar Pathak have been terminated from service and thereafter rest four left out persons were also terminated from service. In support of his statement Annexure I series have been annexed to show that all the persons who have been appointed by Dr. Diwakar Pathak have been terminated from their respective services Patna High Court CWJC No.7247 of 2011 (11) 26 also.
20. Let us examine the present case as to whether the petitioner was appointed applying due process of law as has been enshrined under Articles 14 and 16 of the Constitution. In the present case it appears that the petitioner was appointed as Assistant Teacher on matric trained scale in the Government Basic School, Jethian, Gaya by the Regional Deputy Director of Education, Magadh Division, Gaya vide his memo no.599 dated 8.4.1993 in the pay-scale of Rs.1200- 1800. The appointment letter itself shows that as there was a delay in getting the permanent employee and keeping mind of approval from Divisional Establishment Committee and in order to restart the basic school which was at the verge of closure appointed the petitioner along with another one Tarkeshwari Sinha on temporary basis in the pay-scale of Rs.1200-1800 till further orders. Thereafter the petitioner joined the post and continued. He continued to discharge the duty of Assistant Teacher up-to 10.5.2004 and thereafter he was debarred from discharge of his duty. On enquiry it was found that Dr. Diwakar Pathak, the then Regional Deputy Director of Education had appointed large number of teachers on illegal basis and all of them were asked to stop work Patna High Court CWJC No.7247 of 2011 (11) 27 wherever they were posted.
21. The petitioner has not brought any material in the writ petition to show that the petitioner was appointed against any advertisement, inviting the application from candidates in general nor he has brought any letter to show that he was interviewed nor any averment has been made about following the reservation policy. In nutshell whole appointment has been made in illegal manner that can easily be inferred. In the case of back door entry as has been held by the Hon'ble Supreme Court the door from which he has entered in the service he should also expelled from the service through the same door and provisions of Article 311 of the Constitution of India cannot be said to be applied and from letter of appointment itself shows it was not a permanent appointment rather it was a temporary appointment till further order and this Court does not find any illegality in the impugned order passed by the Regional Deputy Director of Education, Magadh Division, Gaya.
22. Accordingly this writ petition is dismissed.
Vinay/- (Shivaji Pandey, J)