Parmeshwar Sharma vs State of Bihar & Ors

1 .Heard learned counsel for the petitioner; State and L. N. Mithila University.

The petitioner had moved the Court for the following reliefs:

“That this is an application for issuance of appropriate writ or writs, director or directions commanding the respondents to regularize the service of

the petitioner who is working as Laboratory Incharge on a vacant sanctioned post appointed by the then Respondent No. 4 on 12.09.1985 vide

department letter No. 946 and also in view of the participation in the interview in pursuance of the advertisement published in the year 1997 and or

issuance of appropriate consequential writ or writs to pay salary to the petitioner since his joining as Lab Incharge in the department of Respondent

No. 4 and also payment of statutory as well as penal interest thereon and/or issuance of appropriate consequential writ or writs under the facts and

circumstances of the case.â€​

The admitted position with regard to initial appointment of the petitioner is based on Annexure-1, which reads as under:

“ UNIVERSITY DEPARTMENT OF CHEMISTRY

L. N. MITHILA UNIVERSITY Kameshwarnagar, DARBHANGA-846004.

To,

Sri Parmeshwar Sharma

Hassan Chawk, Darbhanga.

Subject:- Appointment of Laboratory Incharge on Honourary basis.

With reference to your application dated 22/2/84, I am to inform you that you have been appointed as a Laboratory incharge in the department of

Chemistry L.N. Mithila University, on Honourary basis. You are directed to report on duty in the department of chemistry before Prof. Incharge

physical/Organic/ Inorganic laboratory on 26.9.85 at 11 A.M. Your case will be forwarded to the University for consideration.

Sd/- Illegible, 12/9/85 PROFESSOR & HEAD UNIV. DEPTT. OF CHEMISTRY L.N. MITHILA UNIVERSITY DARBHANGA.â€​

From the same, it is absolutely clear that the initial appointment of the petitioner was made only on the basis of an application filed by him. This is

totally impermissible in the eyes of law. Further, a Full Bench judgment of this Court in the case of Ram Sevak Yadav vs. State of Bihar (Full Bench)

reported as 2013 (1) PLJR 964, after considering the decisions of the Hon’ble Supreme

Court in the case of Secretary, State of Karnataka v. Uma Devi reported as 2006 (2) PLJR 363 and also State of Karnataka v. M. L. Kesari reported

as (2010) 9 SCC 247 and other decisions on the point, has categorically held that any appointment made dehors compliance of Article 14 of the

Constitution of India without advertisement cannot be regularized, no matter having continued for a long period of time. The relevant being at

paragraph no. 43 of the judgment is quoted hereinbelow:

“43. We therefore sum up our conclusions and answer the reference as follows :-

A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad-hoc and temporary appointments, the period of service being irrelevant;

B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under

any circumstances.

C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant sanctioned

post, in accordance with Article 14 of the Constitution with equal opportunity for participation to others eligible by competitive selection and the

candidate possessed the eligibility qualifications for a regular appointment to the post.

D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over

ten years without intervention of any court orders.â€​

Having regard to the aforesaid, on the basis of the admitted position, the Court finds that regularization of service of the petitioner is not permissible

in law.

Accordingly, the writ petition stands dismissed.