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(Ansari, J) We have heard Mr. P.K. Tiwari, learned counsel, for the appellant, and Ms. G.Deka, learned Additional Senior Government Advocate, for the respondent Nos.1 to 3. We have also heard Mr. P.D. Nair, learned counsel, for the respondent No.4.

BACKGROUND FACTS:

2. When the (Group B) General and Central Service (Law Officer-cum-Junior Draftsman Post) Recruitment Rules, 1979, (hereinafter referred to as 'the 1979 Rules') were in force, respondent No.4 herein, namely, Shri Hajulu Pulu, was, initially, appointed, without holding any selection process, as a Law Officer-cum-

14. Thus, according to Mr. Tiwari, the 1979 Rules do not provide for making appointment, in the disguise of direct recruitment, without holding any selection process. As far as the DPC under the 1979 Rules is concerned, the same was, points out Mr. Tiwari, necessary only when recruitment was made by way of promotion, deputation or transfer and not otherwise, i.e., by way of direct recruitment.

WA No. 08 (AP) of 2008

15. In the case at hand, further points out Mr. Tiwari, respondent No.4 was, admittedly, not recruited by way of promotion, deputation or transfer and, hence, the question of DPC regularizing his service, under the 1979 Rules, did not arise at all. This apart, insists Mr. Tiwari, since respondent No.4 was appointed, initially, on contractual basis and, then, on ad hoc basis without holding any selection process at all, his appointment was against the State's constitutional obligation to make public employment by holding regular selection process and by affording all interested eligible persons adequate opportunity to participate in such selection process.

17. The appointment of respondent No.4, according to Mr. Tiwari, was, thus, after coming into force of the 2004 Rules, wholly against the constitutional scheme of public employment. Mr. Tiwari further points out that since the ad hoc appointment of respondent No.4 was without following any selection procedure, the process of regularization of the service of the respondent No.4, under the pretext that it was during the validity period 1979 Rules that respondent No.4 had been given ad hoc appointment, is wholly untenable in law inasmuch as the 1979 Rules do not contemplate appointment on contractual basis and/or ad hoc basis without following any recruitment process whatsoever. The learned Single Judge, therefore, submits Mr. Tiwari, erred in taking the view that regularization of the service of respondent No.4, under 1979 Rules, was legal. SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

41. We cannot but hold that the ad hoc appointment of respondent No.4 by order, dated 27.12.2002, being arbitrary and without holding any selection process whatsoever, was, and ought to have been treated by the learned Single WA No. 08 (AP) of 2008 Judge as, an arbitrary and illegal appointment and, therefore, not sustainable in law inasmuch as when the ad hoc appointment was arbitrary and illegal, the question of regularization of such an appointment did not arise at all.

42. The learned Single Judge's finding to the effect that the respondent No.4 had been validly appointed, on ad hoc basis, against a vacant post, during the subsistence of the 1979 Rules, is wholly erroneous. Since the ad hoc appointment of respondent No.4 was without following even a semblance of any selection procedure, the ad hoc appointment was nothing but arbitrary. Such an arbitrary ad hoc appointment could not have been regularized purportedly even under the 1979 Rules. This apart, when the 1979 Rules had not remained in existence and the same had been replaced by the 2004 Rules, the question of regularization of the ad hoc appointment of respondent No. 4, by taking recourse to the 1979 Rules did not arise, particularly, when the ad hoc appointment of respondent No.4 was nothing but arbitrary, illegal and void ab initio, did not arise at all. Even if, on the ground that respondent No.4 has been in service, one does not interfere with the regularization of his arbitrary ad hoc appointment, his direct appointment by way of regularization, cannot be allowed to survive, with retrospective effect, as has been done in the present case.