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4. But, sometimes this process is not adhered to and
the constitutional scheme of public employment is
bypassed. The Union, the States, their departments and
instrumentalities have resorted to irregular appointments,
especially in the lower rungs of the service, without
reference to the duty to ensure a proper appointment
procedure through the Public Service Commissions or
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otherwise as per the rules adopted and to permit these
irregular appointees or those appointed on contract or on
daily wages, to continue year after year, thus, keeping out
those who are qualified to apply for the post concerned
and depriving them of an opportunity to compete for the
post. It has also led to persons who get employed, without
the following of a regular procedure or even through the
backdoor or on daily wages, approaching the courts,
seeking directions to make them permanent in their posts
and to prevent regular recruitment to the posts concerned.
The courts have not always kept the legal aspects in mind
and have occasionally even stayed the regular process of
employment being set in motion and in some cases, even
directed that these illegal, irregular or improper entrants
be absorbed into service. A class of employment which
can only be called "litigious employment", has risen like
a phoenix seriously impairing the constitutional scheme.
Such orders are passed apparently in exercise of the wide
powers under Article 226 of the Constitution. Whether the
wide powers under Article 226 of the Constitution are
intended to be used for a purpose certain to defeat the
concept of social justice and equal opportunity for all,
subject to affirmative action in the matter of public
employment as recognised by our Constitution, has to be
seriously pondered over. It is time, that the courts desist
from issuing orders preventing regular selection or
recruitment at the instance of such persons and from
issuing directions for continuance of those who have not
secured regular appointments as per procedure
established. The passing of orders for continuance tends
to defeat the very constitutional scheme of public
employment. It has to be emphasised that this is not the
role envisaged for the High Courts in the scheme of things
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and their wide powers under Article 226 of the
Constitution are not intended to be used for the purpose
of perpetuating illegalities, irregularities or improprieties
or for scuttling the whole scheme of public employment.
Its role as the sentinel and as the guardian of equal rights
protection should not be forgotten.