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Judgment
D.K. Seth, J.—After the writ petition No.44226 of 1992 was disposed of, this writ petition No.22559 of 1999, since been listed along with the same writ petition, is taken up.
In the present case the petitioner has challenged the appointment of the regularly selected candidate Km.Manju Lata alleging that she had replaced the petitioner but in writ petition No.44226 of 1992 in paragraph 7, the name of one Km. Varsha Sonkar has been mentioned to have replaced the petitioner. Km. Varsha Sonkar has not been made a party to this writ petition. Mr. S.N. Dubey, learned counsel for the petitioner contends that the respondents have not come out with a clear case as to whether Km.Manju Lata or Km. Varsha Sonkar had replaced the petitioner. Somewhere it is said that it is Km. Manju Lata and somewhere it is said that it is Km.Varsha Sonkar. If it is so, Km. Varsha Sonkar should have also been made a party.
Be that as it may. The petitioner has challenged the appointment of Km. Manju Lata or Km. Varsha Sonkar on the ground that the petitioner was working in the said post. Unless the petitioner shows that she has a legal right to hold the said post, she cannot maintain this writ petition. The impugned order contained in Annexure 3 to the writ petition does not reveal that Km.Manju Lata had replaced the petitioner. On the other hand it says that consequent upon the posting of regularly selected PRT, the service of the petitioner, ad hoc PRT was no more required with effect from 4th May, 1993. Therefore, it is not known how the petitioner had impleaded Km. Manju Lata as respondent in the writ petition. The ground on which the appointment of the regularly selected candidate has been assailed is only that Scheduled Caste candidates have been selected though 1500 vacancies were advertised pursuant to which the petitioner had also applied. Mr.S.N. Dubey contends that 326 Scheduled Caste candidates have been selected. According to him after having advertised 1500 general post, there cannot be any exclusive selection of 326 Scheduled Caste candidates.However, it has not been urged by Mr. Dubey that number 326 had exceeded the maximum percentage of the reserve quota. The only ground was that without holding the selection of the general candidates exclusive selection of reserve quota candidates could not have been held.
Be that as it may. The challenge thrown to the selection does not entitle the petitioner to hold the post in which she was appointed on ad hoc basis. It may be a challenge to the selection process but it has no nexus with the dispensation of the petitioner''s service on ad hoc basis. She cannot claim any right beyond the scope and ambit of the interim order granted in writ petition No.44226 of 1992, which provided that the interim order would continue till a regularly selected candidate is available. Therefore, the petitioner cannot claim any right as soon a regularly selected candidate joins. Even if she has a locus standi to challenge the selection on the ground that selection of reserve quota candidates have been made, still then she cannot maintain any right to hold the post.
In the case of State of U.P. v. Kaushal Kishore Shukla (1991(1) SCC 691) and in the case of Director, Institute of Management and Development. v. Smt. Pushpa Srivastava (AIR 1992 SC 2070), the apex court had held that the appointment limited by time does not confer any legal right to continue in the post after the expiry of the time limited.
In the present case the petitioner was appointed for a period till 30th April, 1992. Therefore, she could not have claimed any right to continue beyond 30th April, 1992. The appointment was on ad hoc basis. It was not through a regular process. Ad hoc appointment does not confer any right to claim preference over the regularly selected candidates. Admittedly, the appointment of the petitioner was made without following the recruitment rules. Therefore, she cannot claim any right, which could be established as legal right to invoke writ jurisdiction.
In the case of State of Himachal Pradesh. v. Suresh Kumar Verma (1996(2)SLR 321, the apex court had held that judicial process cannot be utilized to support the mode of recruitment de hors the rules.
In the case of State of Haryana. v. Piara Singh (AIR 1992 SC 2130), the apex court had deprecated the entry into service through back door. If any right is conferred on the basis of such ad hoc appointment in the case of the petitioner, she would be deemed to be in service through back door, which cannot be supported by reason of the view taken by the apex court.
In the case of Surender Singh Jamwal v. State of Jammu & Kashmir (JT 1996 (6) SC725)the apex court had held that ad hoc or temporary appointment de hors the rules pending regular recruitment does not confer any right on the appointee to claim regularization. Therefore, on the basis of the ad hoc appointment of the petitioner, limited by time, the petitioner cannot challenge the order dated 4th May, 1993 by which her service was dispensed with.
It is submitted by Mr. S.N. Dubey that despite the interim order granted in this writ petition, the petitioner was never allowed to join.
Admittedly, it appears that the regularly selected candidate joined on 4th May, 1993 and had been holding the post. Whereas, the petitioner was relieved on 4th May, 1993. The interim order was passed on 24th June, 1993. However subsequently the order dated 6th October, 1993 was passed in the writ petition, whereby it was held that the interim order dated 24th June, 1993 shall remain operative. The said interim order cannot affect the working of Km. Varsha Sonkar, who had joined the post since she was not a party to this writ petition. Since the petitioner was already out of employment from 4th May, 1993 till 24th June, 1993, the interim order was impossible to be implemented in the absence of any post. It was physically impossible to implement the said order. Unless there is an order removing Km. Varsha Sonkar from the post, the petitioner could not be allowed to continue by virtue of an order passed on 24th June, 1993 when Km. Varsha Sonkar who was not a party to the proceedings, had joined the post on 3rd May, 1993 and the service of the petitioner remained discontinued from 4th May, 1993. The said interim order which was for a period till 30th September, 1993, appears to have been extended by an order dated 6th October, 1993 though there was no interim order in between 1st October, 1993 till 5th October, 1993.
By an order dated 24th June, 1993, an interim order was granted in this writ petition to the extent that meanwhile the petitioner shall be allowed to continue on the post till 30th September, 1993 and shall be paid salary. This interim order was granted 51 days after the petitioner was relieved from the post and 52 days after Km. Varsha Sonkar had joined the post. Thus the interim order appears to be of mandatory nature. It would amount to reinstatement of the petitioner replacing Km. Varsha Sonkar. It would amount to grant of the whole relief at interim stage. Km. Manjulata was not appointed against the post held by the petitioner. The petitioner did not make Km. Varsha Sonkar a party.
Right of a person, not a party to the proceedings, cannot be affected, since it would violate the principle of audi alteram partem. There cannot be an order of reinstatement affecting the right of a third party, that too, at the interim stage. Neither it can affect the right of a person,not a party to the proceedings, without hearing him, at the interim stage when it was a fait accompli. The interim order in this case appears to have been obtained on the basis of the Statement made in paragraph 20 of the writ petition. Therein it was stated that Km. Manjulata was appointed in place of the petitioner. The said Km. Manjulata did not join. Thus the interim order was purported to have been obtained on misstatement of facts.
An injunction order obtained on mistatement of facts cannot be enforced. Writ jurisdiction is a jurisdiction in equity. In order to claim equity, one has to come with clean hands. If a person comes with unclean hands, he disentitles him from claiming equity. Thus the petitioner cannot claim equity and seek enforcement of the interim order during the pendency of the writ petition. At the same time, nonimplementation of the interim order does not turn the table of equity against the respondents in the facts and circumstances of the case. Inasmuch as it would have affected the right of Km. Varsha Sonkar, not a party to the proceedings.
Be that as it may. The interim orders are subject to the result of the writ petition.
In the case of Committee of Management v. Sree Ram Tiwari (1997(2) UPLBEC 1133) the apex court had held that interim order does not confer any legal right on the petitioner to claim any benefit of such interim order.
So far as the challenge thrown to the selection of the reserve quota candidate pursuant to the advertisement dated 20th June, 1992 is concerned, the petitioner has not challenged the selection. The only prayer that has been made in paragraph (ii) is that "issue writ, order or direction in the nature of certiorari quashing the appointment of S.C./S.T. candidates in pursuance of advertisement dated 20.6.1992 published in Rozgar Samachar, Patrika." It is only that the appointments are being challenged without challenging the selection process. Unless the selection process is challenged and it is shown that there are irregularity or illegality in the selection, the appointment cannot be challenged. The petitioner having not assailed the selection and no prayer having been made to that extent, the writ petition cannot be maintained to challenge the appointment of reserve quota candidate.
Then again, in the absence of any specific averment that the policy of reserve quota had exceeded the maximum number of reservation available against the total post, it is not possible to hold that by reason of selection of Scheduled Caste candidates, there has been an infraction in the selection process.
At the same time Mr. Dubey has also not been able to enlighten the court as to whether the selection in respect of the balance posts has been held or not. Though the petitioner had applied pursuant to the advertisement, but no material is being disclosed before this court and Mr. Dubey has not pointed out anything from the material available that there was no selection of the general candidates in respect of the balance posts advertised. There is no material as of date that after the writ petition was moved or the affidavits were exchanged, no selection had taken place in respect of the balance posts. In such circumstances, it is not possible to accede to the contention of Mr.Dubey as has been sought to be urged at the Bar.
In the result, the writ petition fails and is accordingly dismissed. Interim order, if any stands discharged.
(Petition dismissed).