Raj Kumar Singh Bhadoria vs Chief Engineer and Others

Hon''ble Sudhir Agarwal, J.—Petitioner has sought a mandamus commanding the respondents to treat him a regularly appointed Junior Engineer in Minor Irrigation Department and to direct respondents to regularize him and pay salary. From the averments made in the writ petition, it appears that in order to meet sudden exigency, the Superintendent Engineer, Minor Irrigation and District Magistrate considered to engage persons to work as Junior Engineer in Work Charge Establishment on daily wage basis and pursuant thereto petitioner was engaged and he has continued for sometime. It is evident from the averments made in writ petition that engagement of petitioner was not in accordance with statutory rules applicable for appointment on the post of Junior Engineer in concerned department. Since admittedly petitioner was never engaged and appointed following the procedure prescribed under the Rules, he has no right to hold the post or to claim regularization. No provisions has been shown before this Court entitling the petitioner to claim regularization by means of present writ petition in April 1989. However, it appears that while entertaining this writ petition an ex parte interim order was passed directing responders to continue the petitioner as daily wage employee or to show cause. Respondents did not show cause within the time granted and that is how petitioner appears to have continued to work.

Be that as it may, once it is clear that petitioner has no legal or statutory right to claim regularization and his continuance at the best is pursuant to interim order passed by this Court no relief as sought in the writ petition can be granted.

A Constitution Bench of Apex Court in Secretary, Secretary, State of Karnataka and Others Vs. Umadevi and Others, very categorically held:

The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization or permanent continuance unless the recruitment itself was made regularly and in terms of the Constitutional Scheme."

Following Uma Devi (supra), in Surendra Prasad Tewari Vs. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and Others, , it was held:

Equal opportunity is the basic feature of our Constitution....Our constitutional scheme clearly envisages equality of opportunity in public employment. .... This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment. In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution.

Elaborating the procedure of regular appointment, in Union Public Service Commission Vs. Girish Jayanti Lal Vaghela and Others, , the Court observed that regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner, which would include inviting of applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.

Recently the Apex Court in State of Rajasthan and Others Vs. Daya Lal and Others, following the decision in Uma Devi (supra) held as under:

The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme.

In State of U.P. and Others Vs. Rekha Rani, , the Apex Court referring to its decision in Daya Lal (supra), in para 12 of the judgment, said:

It has been held in a recent decision of this Court in State of Rajasthan and Others Vs. Daya Lal and Others, following the Constitution Bench decision of this Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, that the High Court in exercise of its power under Article 226 cannot regularize an employee. Merely because some others had been regularized does not give any right to the respondent. An illegality cannot be perpetuated.

Further, it is well established that act of the court shall prejudice none. Therefore the continuance of petitioner under an interim order of the Court shall not benefit him. The services rendered pursuant to an interim order would not give any benefit to petitioner. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under: "An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of Uttar Pradesh, Lucknow and Others, , while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:

It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order.

The same principal has been reiterated in the following cases:

(A) Sri Ram Charan Das Vs. Pyare Lal, .

In Shyam Lal Vs. State of Uttar Pradesh, Lucknow and Others, a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed.

(B) 1986 (4) LCD 196 Shyam Manohar Shukla

V. State of U.P. It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal Vs. State of Uttar Pradesh, Lucknow and Others, and Sri Ram Charan Das Vs. Pyare Lal, .

(C) M/s. Kanoria Chemicals and Industries Ltd. Vs. U.P. State Electricity Board and other, .

After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning.

Recently also in Raghavendra Rao Etc. Vs. State of Karnataka and Others Etc., the Apex Court has observed:

It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service.

So far as the service rendered by petitioner for long time is concerned, it is well settled that long continuance, if the appointment has not been made strictly in accordance with law, would not confer any right upon incumbent to hold the post. The Apex Court in Shesh Mani Shukla Vs. D.I.O.S. Deoria and Others, held:

It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State.

In view of above, I find no merit in the writ petition.