Vishun Dayal vs District Registrar

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

Counsel for the Petitioner urges that Petitioner was engaged in the office of Sub-Registrar, Karawali Distt. Mainpuri as waterman since 08.08.1991. Subsequently a Vacant post of Class IV employee (Peon) arose on account of the death of one peon namely Punni Lal, who expired on 04.12.1993. The Petitioner alleged that on the death of Punni Lal, though the Respondents have appointed other person also he was permitted to discharge duties of Class IV employee but he has not been paid salary, as admissible to such employee.

Aggrieved the Petitioner filed Civil Misc. Writ Petition No. 3372 of 1998, in which this Court passed following order on 23.10.1998.

Heard the Petitioner as prayed for regularsiation. This petition is disposed of with direction to the authorities/concerned to decide Petitioner''s representation he may make within two months in accordance with law. S/d M. Katju

It is settled law that an employee appointed under a particular scheme has 4. The Petitioner thereafter submitted representation dated 10/12/1998 and Respondents have rejected the same vide order dated 27/02/1999. The Petitioner has prayed for quashing the order dated 27/02/1999. Annexure-9 to the Writ Petition and also for issue of writ in the nature of mandamus directing Respondents to regularize his services.

The Petitioner placed reliance on following passage in case of Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others,

If the Rule is so interpreted it seems clear to us that employees who have been working on the establishment since long, and who possess the requisite qualification for the job as obtaining on the date of their employment must be allowed to continue on their jobs and their services should be regularized. It is unfair and unreasonable to remove people who have been rendering service since sometime as such removal has serious consequences. The family of the employee, which has settled down, and accommodated its needs to the emoluments received by the breadwinner, will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered age barred for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, and attune his family to live within his earnings and then suddenly to throw him out of job. Such behavior would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Article 41 of the Constitution. Therefore, if we interpret Rule 9 (1) (i) consistently, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job should not be thrown out but their services should be regularized as far as possible. Since works belonging to this batch have worked on their posts for reasonably long spells they are entitled to regularization in services

However, where an appointment made by the State is without competence or without following the procedure prescribed by law, the incumbent cannot claim any right. In such cases the contract of services is not enforceable in law. Any Adhoc appointment made by the authority be regularized according to rules, provided that the incumbent has eligibility qualification of the posts. If the incumbent has continued for long, the vacancy should be filled up on permanent basis in accordance with law and the person working on adhoc basis may also be considered in accordance with rules for regularization. The employer must fill up those posts by a permanent appointment in accordance with the Rules rather than allow such adhoc basis may also be considered in accordance with rules for regularization. The employer must fill up those post by a permanent appointment in accordance with the rules rather than allow such adhoc appointments to continue for years together.

It is settled law that an employee appointed under a particular scheme has no enforceable right in a Court for regularization of his appointment. No vested right is created temporary appointment.

The Practice of making appointment without advertising the vacancies or calling the names from the Employment Exchange violates the fundamental right of the eligible persons.

Adhoc appointment or on daily wages, without following the procedure also violates the Article 14 and 16 of the Constitution as such appointment are made on extraneous consideration, which oust the meritorious and the eligible candidates. The amounts to back door entry and the courts have deprecated such practice.

In Dr. M.A. Haque and Ors. v. Union of India and Ors. 1993 (II) SCC 213 the Supreme Court observed:

We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If disregards of the rules and by passing of the Public Service Commissions are permitted, it will open a back door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provision requiring recruitment to the services through the Public Service Commission. It appears that since this Court has in some cases permitted regularization of the irregularly recruited employees, some governments and authorities have been increasingly resorted to irregular recruitment., The result had been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dictated by various considerations are being recruited as a matter of course.

In Dr. Arundhati Ajit Pargaonkar Vs. State of Maharashtra and others, , it has been held that:

Nor the claim of the Appellant, that she having worked as Lecturer without breaks for 9 years on the date the advertisement was issue. She should be deemed to have been regularized appears to be well founded. Eligibility and continuous working for howsoeverlong period should not be permitted to over reach the law. Requirement of rules of selection cannot be substituted by humane consideration. Law must take its course.

The Apex Court deprecated the practice of making the appointment beyond the rules and rejected the claim on several occasions. The question has also been considered in the following judgments viz; Smt. Ravinder Sharma and Another Vs. State of Punjab and Others, . Smt. Harpal Kaur Chahal v. Director Punjab Instructions. 1995 (Suppl) 4 SCC 706 : State of M.P. and Others Vs. Shyama Pardhi etc. etc., AIR 1998 91 (SC) etc.

In State of U.P. and others Vs. U.P. State Law Officers Association and others, , it has been observed as under:

This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointment irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.

It is not in dispute that services of the Petitioner were temporary and adhoc and his services have been terminated as far back in 1998. The counsel for the Petitioner heavily relied upon the judgment given by Division Bench of this Court in Special Appeal No. 532 of 1997, in which order was passed on 28/07/1997 for regularization of services of employees in accordance with Govt, order dated 09/01/1985. The Petitioner contends that he is fully eligible and liable to be regularized. Service of the Petitioner have already been terminated, as such prayer for regularization cannot be granted. In so far as quashing the termination order is concerned, learned Counsel for the Petitioner has failed to point out any illegality or infirmity in the order impugned.

For reasons stated above, it is not a fit case for interference under Article 226 of the Constitution. The Writ petition fails and is dismissed and there is no order as to costs.