Manoj Kumar and Another vs Principal, Industrial Training Institute and Others

M. Katju and K.N. Ojha, JJ.—This special appeal has been filed against the impugned judgment of the learned single Judge dated 26.3.2004.

We have heard learned counsel for the parties and have carefully perused the impugned judgment.

The petitioners were appointed as assistant clerks in Industrial Training Institute, Bulandshahr on 7.12.1988 on leave vacancy on a purely stop gap arrangement. Their services were dispensed with on 3.2.1990 against which they filed a writ petition in this Court and obtained an interim order. On the strength of that interim order, they continued in service for about 15 years.

The learned single Judge has rightly held that the petitioners appointment gave them no right to the post. Their appointments were made on leave vacancy. There was no advertisement and selection committee and absolutely no process of selection was followed before appointing them. No one examined their age, educational qualification, eligibility, character or suitability. No selection committee examined their applications nor any approval was obtained from the Director. In fact they obtained service from back door. It is well settled that a temporary appointee has no right to the post.

In Triveni Shankar Saxena Vs. State of U.P. and others, , the petitioner had put in 18 years of service but yet the termination of service was upheld by the Supreme Court as they were temporary appointees. The Supreme Court followed its earlier decision in State of Uttar Pradesh and Another Vs. Kaushal Kishore Shukla, and other decisions.

Learned senior counsel for the appellants, Sri Ashok Khare has relied on the U. P. Regularisation of Ad hoc Appointment (on post outside the purview of U. P. Public Service Commission) Rules, 1979.

We are of the opinion that the above Rules have no application. In fact this was not a point pressed before the learned single Judge at all as there is no discussion about it in the impugned judgment.

It is well-settled that there is a presumption that a Judge deals with all the points which are pressed before him. If a point is not discussed in his judgment the presumption is that it was not pressed before him at all.

It often happens that many points (say ten points) are taken in the grounds of a petition or appeal, but only some of them, say three points are pressed. Obviously, the Judge will deal with only these three points.

However, we may also mention that to be entitled for regularisation under the regularisation Rules of 1979 as amended the applicants have to fulfil the conditions in Rule 4 of the said Rules.

Clause (ii) of Rule 4 of the said Rules requires that the applicants must possess the requisite qualifications prescribed for regular appointment at the time of ad hoc appointment. We have not been shown any material to satisfy us that the appellants possessed the requisite qualifications for regular appointment at the time of their ad hoc appointment. In fact there was no such pleadings in the writ petition.

In fact, as the learned single Judge has observed in his judgment, no one examined the petitioners age, educational qualifications, eligibility, suitability etc. The appointment was a purely back door appointment. Under the Regularisation Rules, the applicant has to face a selection committee as mentioned in Sub-rules (3) and (4) thereof, but as held by the learned single Judge there was no selection committee which the appellants faced. Hence also the Regularisation Rules have no application.

The appellants being temporary appointees, have no right to continue in service.

In E. Ramakrishnan and Others Vs. State of Kerala and Others, and Union of India v. Bishamber Dutt JT 1996 (1) SC 329, the Supreme Court observed that where an appointment was not on regular basis the Government cannot take any decision contrary to the Constitution to regularise the service of candidates de hors the recruitment rules and statutory process for selection through the Public Service Commission.

In our opinion regularisation can only be made in accordance with the Service Rules as held by the Supreme Court in State of Haryana and others Vs. Piara Singh and others etc. etc., and Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, . Appointments de hors the rules are invalid as they violate public policy as well as Article 16 of the Constitution 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 ; Bhagwan Singh and Another Vs. State of Punjab and Others, and Chancellor v. Shankar Rao and Ors., (1999) 6 SCC 255 . etc.

Recently a Division Bench of this Court in State of U.P. and Others Vs. U.P. Madhyamik Shiksha Parishad Shramik Sangh and Others, , held that for getting regular appointment, the candidates have to face a regular selection in accordance with the rules and they cannot be regularised without such selection otherwise Article 16 of the Constitution will be violated.

In State of Orissa and others Vs. Smt. Sukanti Mohapatra and others, , the Supreme Court observed that appointment in disregard to the rules cannot be allowed to be regularised merely by invoking the provisions of relaxation. Invoking the power of relaxation in such cases will amount to total suspension of the rules, and regularisation of such appointment by relaxation will be illegal.

In R. N. Nanjundappa v. T. Thmmiah and Anr. 1972 SLR 94, it was observed :

"If the appointment itself is in infraction of the rules or of it is in violation of the provisions of the Constitution, the 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 non-compliance with the 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 the rules or it may have the effect of setting at naught the rules."

For the reasons given above there is no merit in this appeal and it is dismissed.