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Judgment
R.B. Misra, J.—Heard Sri K.K. Singh, learned Counsel for the Petitioner and the learned standing counsel for the Respondent.
In this petition prayer has been made for issuance of writ of mandamus directing the Respondent to pay the arrears of salary of the Petitioner from the date of appointment i.e., 1.3.1993 and for payment of salary month to month.
Brief facts necessary for adjudication of the case is that Petitioner was appointed to the post of junior grade clerk as daily wager on 1.3.1993. Thereafter his services were regularised on the same post by the order dated 28.5.1993 in the pay scale of Rs. 950-1,500 and the Petitioner has continuously been working since the date of his initial appointment but no salary is being paid to him and no heed was taken on the request and representation of the Petitioner and despite the advice of the learned standing counsel also to make the payment to the Petitioner, he is not being paid salary.
According to the Petitioner large number of similarly situated persons are also working and being paid salary and the Petitioner is being discriminated under the provisions of Articles 14 and 16 of the Constitution.
Counter-affidavit has been filed. As contended on behalf of the Respondent that two posts of lower division clerk were created on 5.3.1991 in District Hospital, Sonbhadra, against which two persons namely Sri Dharmesh Kumar and Sri Virendra Kumar Singh were appointed by appointment letter dated 10.6.1991. Thereafter neither any post of lower division clerk was created nor any post had fallen vacant. However, when the then Chief Medical Superintendent Officer Dr. O.N. Rai was on leave for two days, i.e., on 28.5.1993 and 29.5.1993, an order said to have been issued on 28.5.1993 by the then Senior Medical Superintendent who took over the additional charge of Chief Medical Superintendent of District Hospital, Sonbhadra through which the Petitioner appears to have been given appointment without following the procedure of selection and appointment in an illegal and irregular manner without any sanctioned post in the office and in utter violation of the provisions of U.P. Subordinate Offices Ministerial Staff Rules, 1985. When Dr. O.N. Rai came back from two days casual leave the illegality in the appointment was brought to his knowledge immediately and such appointment order was cancelled on 1.6.1993.
According to the Respondent the Secretary, Medical Health and Family Planning, State Government of U.P. has already imposed a ban on all irregular appointment vide circular dated 10.10.1990 whereby any appointment against an existing vacancy was also to be made after obtaining permission/approval from the State Government. It has been emphatically asserted on behalf of the Respondent that the Petitioner has never worked and on the basis of the illegal and irregular alleged appointment, the Petitioner cannot be paid any salary. However, since the said appointment in question de hors the rules and was made without any vacancy and selection process, therefore, at the wisdom of Respondent the same was cancelled.
The question of appointment de hors the Rules has been considered by the Supreme Court from time and again and the Court held that such appointments are unenforceable and inexecutable. It is settled legal proposition that any appointment made de hors the Rules violates the Public Policy enshrined in the rules and, thus, being void, cannot be enforced. Vide Smt. Ravinder Sharma and Another Vs. State of Punjab and Others, ; Smt. Harpal Kaur Chahal v. Director, Punjab Instructions 1995 (Suppl) 4 SCC 706 ; State of M.P. and Others Vs. Shyama Pardhi etc. etc., ; AIR 1998 91 (SC); Patna University and Another Vs. Dr. Amita Tiwari (Mrs.), ; M.P. Electricity Board Vs. S.S. Modh and Others, ; Bhagwan Singh and Another Vs. State of Punjab and Others, and Chancellor v. Shankar Rao and Ors., (1999) 6 SCC 255 .
Appointment de hors the Rules violates the mandate of the provisions of Articles 14 and 16 of the Constitution as held by the Supreme Court in Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others, and State of Haryana and others Vs. Piara Singh and others etc. etc., In Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, , the Supreme Court recognised the public employment as public property and held that all persons similarly situated have a right to share in it thought its enjoyment is subject to the recruitment rules which must be in consonance with the Scheme of the Constitution of India.
In Dr M.A. Haque and Others Vs. Union of India (UOI) and Others, , the Supreme Court observed as under:
....We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and by-passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commission. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorted to irregular recruitments. The result had that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a matter of course.
Depricating the practice of making appointment de hors the Rules by the State or other State instrumentalities in Dr. Arundhati A. Pargaonkar v. State of Maharashtra AIR 1995 SC 962, the Court rejected the claim of the Petitioner therein for regularisation on the ground of long continuous service observing as under:
Nor the claim of the Appellant, that she having worked as Lecturer without break for 9 years'' on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection cannot be substituted by humane considerations. Law must take its course.
The Supreme Court in State of U.P. and others Vs. U.P. State Law Officers Association and others, , has observed as under:
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 backdoor have to go by the same door................... The fact that they are made by public bodies cannot bestow them with additional sanctity. Every appointment made to a public office, howsoever made, is not. There is therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoilt system. There need be no legal anxiety to save them.
Even if there are no Statutory Rules or Bye-laws of the society providing a mode of appointment, the Executive Instructions/Policy adopted by the Respondent-society must be there providing for a mode of appointment. Even if no such Executive Instructions/Policy/Guidelines/Circular, etc. is in existence then a fair procedure for appointment has to be adopted in consonance with the provisions of Articles 14 and 16 of the Constitution. Vide Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare (1998) 8 SCC 99.
In Ramesh Kumar Sharma and Anr. v. Rajasthan Civil Services Appellate Tribunal and Ors. AIR 2000 SCW 4206, the Supreme Court held that "expression ''Service Rules'' cannot be given a restrictive meaning in the absence of the definition of the said terms and, therefore, it would include within its sweep, the necessary government order providing the method for recruitment.
A Constitution Bench of the Supreme Court, in B.R. Kapoor v. State of Tamil Nadu (2001) 7 SCC 231, (Jayalalitha case) observed that it is the duty of the Court to examine whether the incumbent possesses qualification for appointment and the manner in which the appointment came to be made or the procedure adopted was fair, just and reasonable and if not, appointment should be struck down.
The Supreme Court (Constitution Bench) in Ajit Singh (II) v. State of Punjab and Ors. 2000 (1) AWC 574 (SC) : (1999) 7 SC 209 , has held that Articles 14 and 16(1) are basic features of the Constitution. The same view has been reiterated in Ashok Kumar Gupta and Another Vs. State of U.P. and Others, and Indira Sawhney Vs. Union of India and Others, Thus, strict adherence is required thereto.
In Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, and A.P. Aggarwal Vs. Govt. of N.C.T. of Delhi and Another, , the Supreme Court held that every State action, in order to survive, must not be susceptible to vice the arbitrariness which is a crux of Article 14 of the Constitution and the very basis of the Rule of Law.
Therefore, any appointment made by a Statutory Authority, which may be a State within the meaning of Article 12 of the Constitution, if found to have been made by a person without any competence or without following the procedure prescribed by law and in case the procedure is not prescribed and the procedure adopted by the Authority is not in consonance with Articles 14 and 16 of the Constitution, the incumbent cannot claim any benefit as in such a case the contract of service becomes unenforceable and inexecutable.
If the view contrary to the above is accepted, the same would override the mandate of the Constitution also, it will take away the powers of the High Court to issue a writ of quo warranto, wherein the appointment of an incumbent can be challenged not only by an aggrieved person but a stranger also. Invalidity of an appointment may arise not only from want of qualification, but also from the violation of such legal conditions or procedure for appointment as mandatory and as a result of which the appointment becomes void. Vide M. Pentiah and Others Vs. Muddala Veeramallappa and Others, ; The University of Mysore and Another Vs. C.D. Govinda Rao and Another, and P.N. Lakhanpal v. A.N. Roy AIR 1975 Del 66. There can be no quarrel to issue that the Board is an Authority, which is a ''State'' within the meaning of Article 12 of the Constitution. Thus, question of saving such an illegal appointment did not arise.
The instant cases are squarely covered by the judgment of the Supreme Court in The Factory Manager, Cimmco Wagon Factory Vs. Virendra Kumar Sharma and Another, , wherein the Supreme Court, while dealing the similar case, has observed as under:
Assuming that the Respondent was asked to work in a factory in anticipation of securing appointment, that too by an officer who was not competent to give appointment, that did not make the Respondent a workman or regular employee of the Appellant company.
This Court (Hon''ble R.B. Misra, J.) by the order dated 18.12.2003 passed in Writ Petition No. 1648 of 1986, Mahendra Mishra v. Up Nideshak (Prashasan) Rajya Krishi Utpadan Mandi Parishad and another, after considering large number of cases of this Court Single Bench as well as Division Bench and large number of cases of Supreme Court has held that selection/ recruitment or appointment to any post if somehow made and benefits/gains were derived by the beneficiary appointee illegally and if at subsequent stage it is noticed that the illegalities, irregularities, improprieties, procedural infirmities and deficiencies or defects occurred in the selection or such appointments were detected on the basis of complaint or at subsequent stage during adjudication of case and it is noticed that the output and product of such defective and bad selection is outcome of spoiled and defective system and appointment has been obtained by forgery or foul play adopted or by non-observance of Act, Rules, norms were made in process of selection or appointment then the beneficiary candidate, who has become output and product of such defective/bad selection or outcome of spoiled system, shall have no right or claim to the post or salary or any consequential benefits in the service by virtue of such selection or appointment or gains in any form being illegal or void or non-est and being violative of the provisions of Articles 14 and 16 of the Constitution.
Similarly this Court (DB) in Arvind Kumar Pipal and Ors. v. Commissioner, Trade Tax, U.P., Lucknow and Ors. 2003 (5) AWC 3936 : 2004 (1) ESC (All) 444, did not interfere in the selection or the appointment made irregularly and illegally.
I have heard learned Counsel for the parties. I find that there was no vacancy and the procedure prescribed by the rules relevant to the selection to the post of junior grade clerk and the appointment said to have been made was not in consonance to the provisions of relevant rules applicable, as such the selection was bad. The Petitioner being beneficiary appointed as a product of spoiled system, or defective system shall have no right to the post or as such he is not entitled to the salary. The Petitioner has not named any of the persons similarly situated in respect of whom he is said to have been discriminated, therefore, the Petitioner could not derive any benefit on this aspect. No other point has been argued, or pressed in the writ petition.
In these circumstances, this writ petition is dismissed.