Jharkhand High Court
Sintu Poddar & Anr vs State Of Jharkhand Through The ... on 4 May, 2017
Equivalent citations: 2018 (1) AJR 203, (2017) 4 JLJR 241 (2017) 4 JCR 533 (JHA), (2017) 4 JCR 533 (JHA)
Author: D.N. Patel
Bench: D. N. Patel, Ratnaker Bhengra
1 L.P.A. No.228 of 2011
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.228 of 2011
1. Sintu Poddar, son of Late Bamcharan Poddar, resident of Village
- Hatpara, Post Hatpara, District - Pakur at present working as Roller
Khalasi in R.E.O. Sub-Division, Pakur
2. Subodh Sah, son of late Dina Sah, resident of Village - Chiraiya,
P.O. & P.S. - Amarpur, District- Banka at present posted as Roller
Khalasi, R.E.O. Sub-Division, Amrapara, at P.O. & P.S. - Amrapara,
District - Pakur
... ... ... ... ... ... Appellants
Versus
1. The State of Jharkhand through the Secretary, Rural Works
Department, Government of Jharkhand, Ranchi
2. The Engineer-in-Chief-cum-Deputy Commissioner-cum-Special
Secretary, Rural Engineering Organization, Jharkhand, Ranchi
3. The Chief Engineer, Rural Engineering Organization, Jharkhand,
Ranchi
4. The Superintending Engineer, Dumka Circle, Rural Engineering
Organization, Dumka
5. The Executive Engineer, Rural Engineering Organization, Pakur
Division, Pakur
6. The Assistant Engineer, Rural Engineering Organization, Amrapara
Sub-Division, Amrapara, Pakur
7. The Assistant Engineer, Rural Engineering Organization, Pakur
Sub-Division, Pakur
... ... ... ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE D. N. PATEL
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants: M/s. Krishna Murari, Advocate
For the Respondents: M/s. Lalan Kumar Singh, J.C. to G.P.-I
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05/Dated: 04th May, 2017
(Oral order)
Per D.N. Patel, J.
1) The present Letters Patent Appeal has been preferred by original
petitioner nos.1 and 3 being aggrieved and dissatisfied with the judgment
and order of rejection dated 28th August, 2009 passed by the learned
Single Judge in W.P.(S) No.5460 of 2003, which was preferred for
2 L.P.A. No.228 of 2011
regularization of the services of these appellants. The said writ petition
has been dismissed by the learned Single Judge mainly on the ground
that if public employment is given to any person without any
advertisement, without any interview, without there being any invitation of
applications from the public at large and if the appointment is made as a
back-door entry, the regularization of such type of illegally appointed
person is not permissible in the eyes of law. Being aggrieved by the
judgment given by the learned Single Judge, the present Letters Patent
Appeal has been preferred by the original petitioners.
2) It is contended by the counsel for the appellants that these two
appellants are working as Class-IV employees since 01.11.1981 as a
Roller Khalasi, on casual basis. Counsel for the appellants has also
submitted that a circular has been issued by the erstwhile State of Bihar,
which is at Annexure-1 to the memo of appeal, on the basis of which,
even Hon'ble Patna High Court has decided few writ petitions and a
direction was given for regularization. Such orders are in rem and in
personam. Such order is at Annexure-3 to the memo of this Letters Patent
Appeal and in pursuance of such type of orders, even recommendation
was made by the Superintending Engineer to the Engineer-in-Chief for
regularization, which is at Annexure-4 to this memo of appeal and,
ultimately, few employees were regularized and their regularization orders
are at Annexures 5, 6 and 7 and the case of these appellants is exactly
like those employees. It is also submitted by counsel for the appellants
that few employees who are below in the rank to these appellants have
also been regularized and thus, there is a discrimination so far these
appellants are concerned. Counsel for the appellants has relied upon the
decisions reported in 2007(4) JCR 301 [Manglu Prasad Yadav Vs State
of Jharkhand & Ors], (2015) 8 SCC 265 [Amarkant Rai Vs State of Bihar]
and (2010) 9 SCC 247 [State of Karnataka Vs M.L. Kesari] as well as the
decision reported in (2006) 4 SCC 1 [State of Karnataka & Ors Vs Uma
Debi(3) & Ors]. On the basis of aforesaid decisions, it is submitted by the
counsel for the appellants that these appellants ought to have been
regularized into the services, as, they have worked for 240 days prior to
01.08.1995. These aspects of the matter have not been properly appreciated by the learned Single Judge and, hence, the judgment and order delivered by learned Single Judge in W.P.(S) No.5460 of 2003 3 L.P.A. No.228 of 2011 dated 28th August, 2009 deserves to be quashed and set aside.
3) Counsel for the respondents submitted that the appointment of these appellants (original petitioners) was absolutely illegal. These appointments were made as a back-door entry. There was no public advertisement for Class-IV post. No opportunity was given to the public at large to compete for Class-IV posts. Selected few were fortunate enough to get the back-door entry and to get the employment and no premium can be paid to these types of back-door entrants. These aspects of the matter have been properly appreciated by the learned Single Judge. Counsel for the respondents has relied upon the judgments rendered in the cases of State of Bihar v. Chandreshwar Pathak [(2014) 13 SCC 232], Mohd. Ashif Vs. State of Bihar [(2010) 5 SCC 475] and Renu Vs. District & Sessions Judge [(2014) 14 SCC 50].
4) It is submitted by the counsel for the respondents that no error has been committed by the learned Single Judge in not issuing the writ of mandamus for the regularization and, hence, this Letters Patent Appeal may not be entertained.
REASONS
5) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal, mainly for the following facts and reasons: -
(i) These two appellants are the original petitioners who had preferred writ petition being W.P.(S) No.5460 of 2003 for getting a writ of mandamus to be issued upon the respondents for regularization of their services. This writ petition has been dismissed by the learned Single Judge vide order dated 28th August, 2009 and, hence, the original petitioner nos.1 and 3 have preferred this Letters Patent Appeal. These appellants were appointed as Roller Khalasi (Class-IV employees) with effect from 01.11.1981 on casual basis.
(ii) It appears that in this country it has become a fashion to get employment by hook or crook and there are Administrative Heads also, who are more charitable than law. The charity beyond law is a cruelty to others and the grossest example this matter is. Few fortunates in this country are getting back-door entry in the Government or governmental organizations, which are "State"
4 L.P.A. No.228 of 2011within the meaning of Article 12 of the Constitution of India and later on, these few fortunates are filing writ petitions and increasing this type of work of Courts.
(iii) Without any public advertisement and without following any Rules or regulation or Governmental circular, these two appellants were appointed as a Class-IV employees in Pakur Rural Works Division. These facts have been noted by the learned Single Judge in first few lines of internal page no.2 of the impugned judgment and order. Illegal appointees cannot be given premium to their illegality, even after sufficient efflux of time. Enough is enough. A message should go in this country that those who are getting illegal appointment or those who are getting public employment without any public advertisement, they cannot be regularized.
(iv) Thus, those who have been appointed illegally are not even entitled for their salary. The word "salary" goes with legally appointed persons. Few fortunates who are illegally appointed, are getting public employment by hook or crook, whose luck is luckier than intelligent, because, they are getting employment without any competition, whatsoever and, thus, they are not even entitled for salary. They can claim damages, but not the salary.
(v) In the facts of the present case also, there is no public advertisement for the posts upon which these two appellants were appointed and applications from public at large were never invited. These two appellants are back-door entrants in public employment. Their appointment is illegal in nature and, hence, their services cannot be regularized, otherwise, it will give encouragement to;
(a) those high-ranking administrative officers who are more charitable than law to give public employment at the cost of public exchequer to few fortunates, who are luckier than intelligent. This will encourage more back-door entry in the public employment.
(b) Those persons who are not competent enough to get public employment, had there been any public advertisement or had there been any competition for getting employment. Such type of inefficient persons will be encouraged to get public employment by back-door entry which will lead to 5 L.P.A. No.228 of 2011 geometrical enhancement of corruption.
(vi) Counsel for the appellants has relied upon circular at Annexure-1 and few orders of regularization. Neither these circulars nor regularization orders can regularize illegal appointees or back-door entrants. It is now high time to give a message to the public at large. No public employment can be given as a bounty or charity. There is bound to be a public advertisement and there is bound to be an equal opportunity to be given to the public at large to get public employment. Old habit is like an iron shirt, very difficult to be penetrated. Enough directions have been given by Hon'ble Supreme Court not to regularize such type of persons by any stretch of imagination, much less, by any circular and by orders of the Courts.
(vii) It has been held by Hon'ble Supreme Court in the case of State of Bihar Vs Chandreshwar Pathak reported in (2014) 13 SCC 232 in paragraphs 10, 11, 12 and 13 as under: -
"10. The order of appointment, in the present case, is as follows:
"In the light of the order passed by the Inspector General of Police, Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86 F3 Shri Chandeshwar Pathak, s/o Shri Devnarayam Pathak of Village Haraji, PO Haraji, PS Dimbara, District Chhapra was appointed as Constable temporarily from 14-1-1988 afternoon on the condition that his previous character found satisfactory and as and when necessary, his service shall be terminated without assigning any reason or show cause. His pay scale shall be Rs 425-10,565 EB-10-605 with the basic pay of Rs 425. He has been allotted CT No. 390."
It is clear from the above order that the appointment has been given only on the asking of the Inspector General of Police. There is nothing to show that any advertisement was issued giving opportunity to all eligible candidates to compete or any selection process was undertaken before 6 L.P.A. No.228 of 2011 appointment of the respondent.
11. In State of Orissa v. Mamata Mohanty, it was observed as under: (SCC pp. 451-52, paras 35-36) "Appointment/employment without advertisement
35. At one time this Court had been of the view that calling the names from employment exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from employment exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in radio and television as merely calling the names from the employment exchange does not meet the requirement of the said article of the Constitution. (Vide Delhi Development Horticulture Employees' Union v. Delhi Admn., State of Haryana v. Piara Singh, Excise Supt. v. K.B.N. Visweshwara Rao, Arun Tewari v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Deptt. of Telecommunications v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State of M.P. v. Mohd. Abrahim.)
36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange 7 L.P.A. No.228 of 2011 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."
12. No contrary view of this Court has been cited on behalf of the respondent. Moreover, another Division Bench of the same High Court has upheld termination in similar matter as noted earlier against which SLP has been dismissed by this Court as mentioned earlier.
13. Accordingly, it has to be held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. The learned Single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same."
(Emphasis supplied)
(viii) In view of the aforesaid decision, there cannot be any regularization on the public posts which are occupied by few fortunates who are luckier than intelligent, who are back-door entrants, who have got public employment without any public advertisement and without facing any competition with the public at large and those who are more favourable from high-ranking administrative officers.
(ix) It has been held by Hon'ble Supreme Court in the case of Renu Vs. District & Sessions Judge reported in (2014) 14 SCC 50 in paragraphs 8 to 13 as under: -
8 L.P.A. No.228 of 20118. 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 Admn., State of Haryana v. Piara Singh, Prabhat Kumar Sharma v. State of U.P., J.A.S. Inter College v. State of U.P., M.P. Housing Board v. Manoj Shrivastava, M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey and State of M.P. v. Sandhya Tomar.
9. In Excise Supt. v. K.B.N. Visweshwara Rao, a larger Bench of this Court reconsidered its earlier judgment in Union of India v. N. Hargopal, wherein it had been held that insistence on recruitment 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: (K.B.N. Visweshwara Rao case, SCC p. 218 para 6) "6. ... 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 cases of all candidates who have applied. If this procedure is 9 L.P.A. No.228 of 2011 adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
(emphasis supplied) (See also Arun Tewari v. Zila Mansavi Shikshak Sangh and Kishore K. Pati v. District Inspector of Schools, Midnapore.)
10. In Suresh Kumar v. State of Haryana this Court upheld the judgment of the Punjab and Haryana High Court wherein 1600 appointments made in the Police 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 UPSC v. Girish Jayanti Lal Vaghela this Court held:
(SCC p. 490, para 12)
"12. ... 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 supplied)
12. The principles to be adopted in the matter of public 10 L.P.A. No.228 of 2011 appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Yadav as under: (SCC pp. 274-75, para 24) "(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 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."
11 L.P.A. No.228 of 201113. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3), 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."
(Emphassis supplied)
(x) In view of the aforesaid decision also, those who are appointed without any public advertisement and without there being any competition with the public at large and those who are back-door entrants in the public employment, their services cannot be regularized.
(xi) In view of the aforesaid decisions and also looking to the first paragraph of internal page No.2 of the impugned order which reads, "There is no dispute of the facts that these petitioners were appointed without following the rules, regulations and procedure for public advertisement i.e. without advertisement and without interview. The claim of the petitioners is only on the basis of long continuance in service.", no error has been committed by the learned Single Judge in dismissing the writ petition preferred by these appellants.
(xii) Counsel for the appellants has relied upon the decision reported in (2015) 8 SCC 265 [Amarkant Rai Vs State of Bihar]. Looking to paragraph 8 of the said judgment, initially those petitioners before the Hon'ble Supreme Court were appointed in the year 1983, thereafter their services were terminated in the year 2001, again they were reinstated in the year 2002; again their services were terminated in the year 2007. In this background, the aforesaid decision has been rendered, whereas, the facts of the 12 L.P.A. No.228 of 2011 present case is absolutely different as stated herein above. Similarly, the judgment upon which the reliance is placed by the counsel for the appellants and the facts of the present case are absolutely different. From the very beginning, the very appointment of these appellants is without any public advertisement and without any opportunity of competition given to the public at large and, hence, there cannot be any regularization of services of these two appellants. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by these appellants.
(xiii) Counsel for the appellants have also argued that there are few employees whose services have been regularized. This contention is also not helpful to these appellants, because, there cannot be any equality in illegality.
(xiv) Counsel for the appellants has also placed much reliance upon the recommendation made by the Superintending Engineer to the Engineer-in-Chief vide letter dated 7th February, 1997 (Annexure 4 to the memo of appeal). This letter is also of no help to these appellants. Those administrative officers who have given illegal appointment are now recommending for regularization and that too, against the decisions rendered by the Hon'ble Supreme Court reported herein above. No premium can be paid to the illegal appointees. No premium can be paid to the high-ranking administrative officers' illegal actions. No encouragement can be given to the persons to get the illegal appointment by such type of regularization. Back-door entrants should go out by the same entry. No public employment can be given to the illegal appointees. If such type of regularization is permitted, it will give encouragement to the corruption and the corrupt practices for both those who are in such type of employment and those who are giving such type of employment. A thing which cannot be done directly, can never be done indirectly. No selected few can be given public employment without any public advertisement, even if they have worked for few years, because, there is a patent illegality in their appointment. Illegality cannot be converted into legality by efflux of time.
13 L.P.A. No.228 of 20116) As a cumulative effect of aforesaid facts, reasons and judicial pronouncements, no error has been committed by the learned Single Judge in dismissing the writ petition preferred by these two appellants. We also see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.
(D. N. Patel, J)
Manoj/ (Ratnaker Bhengra, J)