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TMI Blog2013 (2) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... g appointed in temporary capacity. That of the latter stated consequent to the letters of the In-Charge Medical Officer, he was being appointed in special circumstances and permitted to work as Sweeper (because he belonged to the same caste) but would have to face the selection committee at a subsequent date. They were terminated on 14.6.2001 and 30.10.2001 respectively on the ground that their appointments were illegal. CWJC No. 11713 of 2003 was filed by the former. CWJC No. 11651 of 2002 by the latter was allowed on 8.9 2003 holding that termination after over a decade of service was unjustified. L. P. A. No 242 of 2004 preferred by the State, and the former writ application was heard together and disposed on 26. 6. 2006 with a batch of analogous applications led by L.P.A. no. 946 of 2003. The applications were not tested on individual merits. They were disposed by a common order. The respondents were directed to reconsider after ascertainment of necessary facts, regularisation of the eligible under the directions contained in paragraph 53 of (Uma Devi) (supra). The authorities after reconsideration on 31.12.2008 declined regularisation holding that the appointments were forg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to the authorities on the earlier occasion was accepted by the petitioners. They allowed the concerned committee to scrutinise their cases. After the fresh decision has gone against them, they cannot be permitted to rescile from their earlier stand and challenge the reference to the Committee itself. There was no conflict between (Uma Devi) (supra) and (M.L.Kesari) (supra). The ratio decidendi in the former with regard to the distinction between an illegal and irregular appointment for purposes of regularisation had not been diluted or reinterpreted rather reaffirmed in the latter. The latter related to a claim for regularisation by daily wages. The petitioners were not appointed on daily wage. Exigency of circumstances may justify a daily wage appointment but for appointment of the present nature regular procedures in consonance with Article 14 Patna High Court CWJC No.267 of 2010 dt. 01-02-2013 5 of the Constitution had to be followed. If there was any conflict between the two judgments, the Constitution Bench judgement shall prevail. To avail the benefit of any observation at paragraph 7 of M. L. Kesari (supra) it had to be demonstrated that the initial appointment was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the temple of justice. Truth is the foundation of justice and it has to be the common endeavour of all to uphold the truth and no one should be permitted to pollute the stream of justice. 43.5. It is the bounden obligation of the court to neutralise any unjust and/or undeserved benefit or advantage obtained by abusing the judicial process. The petitioners, in the earlier application as also the present, have filed typed copies of their termination orders. Any error in either of them only could have been considered inadvertent. But if the same error has persisted in both applications, it loses the quality of inadvertence. Reading the impugned orders, finding inconsistency of language, the Court requested Counsel for the petitioners to place the original letter of termination for perusal. The typed copy states that show cause notice was issued on 21.5.2001 which was replied by them. Both the writ applications nonetheless contended that the termination was ex parte in violation of the principles of natural justice. Reading the original termination letter, it reveals, show cause notice was issued on 21.5.2001 but the petitioners did not file any reply. Confronted with the corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advertisement or competitive merit selection. It is not their case that they were registered with the Employment Exchange. There is nothing to suggest that it was made against a sanctioned vacant post. On the contrary the language of the appointment letter more than sufficiently and inevitably manifests that it was a backdoor appointment doled out to them as an individual favour, treating them as blue eyed boys, reminiscent of the spoils system noticed in (2009) 5 SCC 65 (State of Bihar v. Upendra Narayan Singh). The opening of a Service Book and enhancement of salary cannot confer the camouflage of legality on such an illegal appointment. Considering such illegal appointments it was observed in (1992) 4 SCC 99 (Delhi Development Horticulture Employees' Union v. Delhi Admn.) : 23.....The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. A person appointed in rank illegality cannot complain that the termination procedure was arbitrary. Those who came in through the back door must go out through the same door as observed in (1994) 2 SCC 204 (State of U.P. v. U.P. State Law Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules. 16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words regular or regularisation do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. The observations in paragraph 53 of the judgement in (Uma Devi) (supra) has therefore to be read, appreciated and understood in the backg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s substantially been complied with or not, it would not be proper for us to put the parties to the same position to which they were in 1989. In (2009) 4 SCC 342 (State of Karnataka v. G.V. Chandrashekar) the direction to regularise on completion of ten years of service was set aside holding at page 354 : 32.........Initial recruitment of the respondents being wholly illegal and contrary to the constitutional scheme of this country, the impugned judgment of the High Court cannot be upheld. In (2006) 2 SCC 702 (M.P. Housing Board v. Manoj Shrivastava) it was observed: 10. It is one thing to say that a person was appointed on an ad hoc basis or as a daily-wager but it is another thing to say that he is appointed in a sanctioned post which was lying vacant upon following the due procedure prescribed therefor. In M.L.Kesari (supra) it was observed at paragraph 7 as follows :- 7. It is evident from the above that there is an exception to the general principles against regularisation enunciated in Umadevi (3), if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation 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 regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.(Emphasis added by us) Learned Additional Advocate General 1 has also invited our attention to the observation in (1976) 4 SCC 52 (State of U.P. v. Ram Chandra Trivedi) holding : 22. Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r act. Likewise 2009 (2) PLJR 869 (DB) is again distinguishable on its facts. It related to an earlier termination for unsatisfactory conduct set aside by the Court. The respondents raised no issues of illegal appointment. Having reinstated him, the respondents granted him increments and pay revisions also. As an afterthought years later the question of the original appointment being illegal was sought to be raised. In 2011 (4) PLJR 1 (State of Bihar v. Krishna Prasad Srivastava) the facts were entirely different. It related to a first termination itself on grounds of a forged appointment letter. The public power to make appointment on public posts is conferred for public good. The power is given to the officer concerned by the government in trust, that it shall be used and not abused. If the trust is belied, the protection conferred upon a government servant stands denuded. The answerability and accountability is then individual of the officer. The government is duty bound to take appropriate civil/ criminal action against the officer. The illegality in the appointment is not a one way street. If there was someone willing to pay a price for the job, there was another waiting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intment. I direct that this should be complied with by the government in each and every case where an appointment is sought to be cancelled on the ground that it was illegally made in circumstances which give rise to a suspicion that the appointment was made on extraneous consideration, including money. Court orders are not mere platitudes or idealistic rhetoric incantation. They are meant to be complied with. We therefore direct the State Government to identify the officials concerned with the present appointments and take appropriate action against them in accordance with law and expeditiousness. Let a report be then submitted within eight weeks. 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 sanctione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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