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Judgment
D.N. Patel, J.—The present petition has been preferred challenging the order dated 7th November, 2000, passed by the Government of Jharkhand, at Annexure 12 to the memo of the petition, whereby the claim of present petitioners for regularization in the services have been rejected. Counsel for the petitioner submitted that petitioner No. 1 was appointed on 17th May, 1985. Petitioner No. 2 was appointed on 29th January, 1986. Petitioner No. 3 was appointed on 15th February, 1986. Petitioner No. 4 was appointed on 7th December, 1985, petitioner No. 5 was appointed on 4th April, 1986 and petitioner No. 6 was appointed on 30th April, 1986. Petitioner Nos. 1, 2 and 3 were appointed on a Class III posts whereas petitioner Nos. 4, 5 and 6 were appointed as Peons.
All these petitioners were appointed by the Principles of the Constituent College of respondent Nos. 3 and 4, namely Madhupur College, District Deoghar. Their services were not regularized and therefore, a writ petition, bearing C.W.J.C. No. 6183 of 1994 was preferred by the petitioners on an earlier occasion. This writ petition was disposed of by order dated 15th July, 1997 and a direction was given to respondents to consider the case of the petitioners. On the basis of the aforesaid order of the Court the impugned order at Annexure 12 has been passed by the respondents whereby the prayer for regularization of the services of the respondents was rejected.
Counsel for the petitioners submitted that though petitioners were not appointed on sanctioned posts, Principal of the college has all authority to appoint the petitioners within the ''staffing pattern'' and respondents ought to have regularised the services of the petitioners. This aspect of the matter has not been properly appreciated by the respondents while passing the impugned order. The petitioners are working since long as stated herein above.
Counsel for the respondent Nos. 3 and 4 submitted that as per Section 10(6) of the Jharkhand Universities Act, 1976, only the Vice Chancellor has got the power to appoint the staffs in the constituent colleges. The college in which the petitioners were appointed is a constituent college of respondent Nos. 3 and 4.
Counsel for the respondent Nos. 3 and 4 further submitted that principal has no power, jurisdiction and authority to appoint Class III and Class IV employees beyond the sanctioned posts. In fact there were only 15 Class IV posts and 11 Class III posts were sanctioned. The petitioners were not appointed against vacant sanctioned posts and therefore, no question of regularization, whatsoever, arises. Moreover, they were appointed without any public advertisement and without any selection process being followed. Thus, these petitioners are back door entrants in the services. Counsel for the respondent Nos. 3 and 4 has relied upon the following decisions :
(a) Vijay Kumar v. State of Bihar & Others, reported in 1993 (1) P.L.J.R.;
(b) M.L. Gupta and Others Vs. Instrumentation Ltd. and Others
(c) Sukh Sagar Prasad and Others Vs. The State of Bihar and Others and has submitted on the basis of the aforesaid three decisions that if the employees are appointed by a person, who is not competent and more so against posts which, were never sanctioned by the Government, their appointment, from the very beginning, is illegal and therefore, their services can not be regularized.
Counsel appearing for the respondent-State submitted that petitioners were appointed illegally without any public advertisement and without following any procedure of selection. Therefore, their services can not be regularised and as their appointments were not against sanctioned posts, therefore also the services of the petitioners can not be regularized. Counsel for the respondent-State has relied upon the following decisions :
(1) State of Bihar Vs. Upendra Narayan Singh and Others, ;
(2) Renu Kumari No. 1 v. The State of Jharkhand & Others, reported in 2009 (3) JLJR 87.
On the basis of the aforesaid decisions, it is submitted by the counsel for the respondent-State that once the petitioners were appointed without any public advertisement and without following the selection procedure and that to without against sanctioned posts, their appointment is void ab initio and therefore, their services have rightly been not regularized by the respondent-State vide order at Annexure 12 dated 7th November, 2000.
Having heard counsel for the parties, and looking to the facts and circumstances of the case, I see no ground to entertain this writ petition mainly for the following facts and reason :
(I) petitioner No. 1 was appointed on 17th May, 1985. Petitioner No. 2 was appointed on 29th January, 1986, petitioner No. 3 was appointed on 15th February, 1986, petitioner No. 4 was appointed on 7th December, 1985, petitioner No. 5 was appointed on 4th April, 1986 and petitioner No. 6 was appointed on 30th April, 1986, petitioner Nos. 1, 2 and 3 were appointed on a Class III posts whereas petitioner Nos. 4, 5, 6 were appointed as Peons.
(II) These appointments were made by Principal of the Madhupur College, Deoghar, Madhupur College is a constituent college of Sidhu Kanho University, Dumka, i.e. of respondent Nos. 3 and 4. It further appears from the facts of the case that there were only 11 posts sanctioned for Class III posts and only 15 sanctioned posts for Class IV employees at Madhupur College. Thus,
(III) Madhupur College can have only 11 Class III posts and 15 Class IV post employees. It further appears from the facts of the case that as per Section 10 (6) of Bihar State Universities Act. ''1976. Vice Chancellor has got the power of appointment. For ready reference. Section 10 (6) is quoted as under :
The Vice-chancellor shall subject to the provisions of this Act, the Statutes and the Ordinances have power to make appointment to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants of the University not being teachers and officers of the University and have control and full disciplinary powers over such staff and servants.
(IV) In view of the aforesaid section, the Vice Chancellor has got power of appointment in the constituent colleges. In the facts of the present case, the appointment has been made by the Principal of the College in question. Counsel for the petitioner has heavily relied upon Annexure 7 to the memo of the petition, which empowers the Principal to appoint Class III as well as Class IV employees in the college. This contention of the counsel for the petitioners is not accepted by this Court mainly for the reason that sanctioned posts were already fixed by the Government for Madhupur College. Principal of Madhupur College, has no power jurisdiction and authority which allows him to appoint staffs beyond the sanctioned posts. Legal authority of the post of the Principal can not be utilized for illegal actions. These petitioners were not appointed against the vacant sanctioned posts and therefore, their appointment from the very beginning is illegal. Never any public advertisement was given for appointment on Class III and Class IV posts in the said college. It ought to be kept in mind that in the institutions, which are ''State'' within the meaning of Article 12 of the Constitution of India, whenever any public post is to be filled up, the public at large must be given the same opportunity as its employees for getting selected on the said post. Article 14 and Article 16 of the Constitution of India provides that the authorities, who are ''State'' within the meaning of Article 12 should follow the legal procedure for the appointment, otherwise the appointments will be considered as back door entries and those who have been appointed by back door entry should go out by the same entry. There is no need to follow legal procedure to terminate their services. Back door people should go out by the same entry. It further appears from the facts of the case that neither any public advertisement was given for Class III and Class IV posts in the college in question nor any selection procedure was followed and these petitioners were appointed by the Principal of the Madhupur College without following any method whatsoever and that to against no vacant sanctioned post. Moreover, even no subsequent ratification had been obtained either from the University or from the Government. It has been held by the Hon''ble Supreme Court in State of Bihar Vs. Upendra Narayan Singh and Others, in paragraph Nos. 25 and 32 as under :
The equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement so as to enable all eligible persons to compete for section on merit Umesh Kumar Nagpal v. State of Haryana, UPSC v. Girish Jayanti Lal Vaghela, State of Manipur v. Y. Token Singh and Municipal Corpn., Hyderabad v. P. Mary Manoranjani. Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependant of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect.
Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoils system which prevailed in America in the 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the Court and wait for justice for years together.
(V) It has been held by this Court in Renu Kumari No. 1 v. State of Jharkhand and others, reported in 2009 (3) JLJR 87 that any appointment made by incompetent authority without any jurisdiction and without following the due procedure or procedure established by law is ab initio illegal and unsustainable. In pursuance of the order passed by this Court in the earlier writ petition, bearing C.W.J.C. No. 6183 of 1994, which is dated 15th July, 1997, after giving adequate opportunity of being heard to the petitioners the impugned order at Annexure 12, dated 7th November, 2000 was passed. Thus, there is no violation of principles of natural justice. It has been held by Hon''ble Patna High Court in Vijay Kumar v. State of Bihar and others, reported in 1993 (1) PLJR 99 that any appointment made in violation of the mandatory provisions of recruitment rules as also Article 16 of the Constitution of India is nullity. In fact, looking to the counter-affidavit filed by the respondent-State, the principal, who has appointed all these petitioners without any public advertisement and without any procedure being followed, was also not a regular Principal of Madhupur College, but he was an In-Charge Principal. Thus, only as a temporary measure, he was given the charge of the post of Principal and during this period the petitioners were allowed the illegal ''back door entry''.
(VI) The arguments canvassed by the counsel for the petitioners that the petitioners were appointed against staffing pattern of Madhupur College and their appointment is legal is also not accepted by the Court because in the counter-affidavit, it has been stated that all the petitioners were appointed despite the fact that there was no sanctioned post and staffing pattern can not increase automatically the vacant sanctioned posts as stated herein above. Vacant sanctioned posts were limited for Class III and Class IV employees in the said college and these petitioners were not appointed against these vacant sanctioned posts and therefore, their services can not be regularized when they have been appointed without vacant sanctioned posts and that to without following the procedure of appointment, i.e. without giving any advertisement, and without there being any selection procedure followed by the Principal of the College.
(VII) It has been held by the Hon''ble Court of Judicature at Patna in M.L. Gupta and Others Vs. Instrumentation Ltd. and Others , paragraph No. 95 as under :
From the decision of the Supreme Court as also of this Court, as referred to hereinbefore, it will thus be evident that any appointment which was made by a person having no authority to do so or the appointments which have not been made following the mandatory provisions of the Recruitment Rules and Articles 14 and 16 of the Constitution, such appointments should be held to be nullity, In this view of the matter, in my opinion, this Court in exercise of its writ jurisdiction cannot direct regularisation of the services of the employees when the same would be violative of Articles 14 and 16 of the Constitution.
In view of the aforesaid decision also the appointment of the present petitioners are illegal and illegal ab initio and therefore, there is no illegality in passing the order at Annexure 12 by the respondents dated 7th November, 2000.
Further, in view of the decision of the High Court of Judication at Patna in Sukh Sagar Prasad and Others Vs. The State of Bihar and Others also appointment of the present petitioner is illegal and therefore, the same has rightly not been regularised.
(VIII) Councel for the petitioner has relied upon the Full Bench judgment reported in 1997 (1) P.L.J.R. 509.
Looking to the peculiar facts of the present case that the petitioners were appointed against non-vacant and non-sanctioned posts and that to by the In-charge Principal and without any post-facto sanction by the Government or by the University, the present case is different from the case with respect to which the aforesaid decision rendered and therefore, the said ratio is not applicable in the present case.
Therefore, as a cumulative effect of the aforesaid facts, reasons and the judicial pronouncements, there is no substance in this writ petition, which is accordingly dismissed