JUDGMENT A.K. Yog and Prakash Krishna, JJ.
1. Heard Shri Mahesh Gautam, Advocate, on behalf of the petitioner-appellant in the intercourt special appeal before us arising from judgment and order dated 2.4.1999 passed by Learned Single Judge in Civil Misc. Writ Petition No. 12200 of 1999 : Arvind Kumar v. The Director, Rajya Krishi Utpadan Mandi Parishad, U.P. Lucknow and Ors.). Facts of the case have been, in great detail noted by the Learned Single Judge in the impugned judgment and order dated 2.4.1999 and hence we need not repeat the same. This Special Appeal can be decided on a short question as discussed hereinafter. The Learned Single Judge has observed which reads:
The facts as disclosed shows that the petitioner was not recruited through the procedure laid down in Regulations 14, 15 and 16 of the 1984 Regulations. The recruitment could be made under the said Regulations as provided in Regulation 14 after the appointing authority determines the number of vacancies to be filled up in the course of the year as well as the vacancies to reserved under Regulation 11 for Schedule Castes and Schedule Tribes and others. Once such vacancy is determined the posts are to be advertised in one or two leading newspapers of the State calling for applications from eligible candidates. The vacancies are also required to be notified to the Employment Exchange, according to Regulations and orders for the time being in force. According to Regulation 15, candidates taking part in the selection by direct recruitment shall be required to pay to the appointing authority such fees as may be prescribed from time to time by the Board. In terms of Regulation 16, applications received from the candidates in response of such advertisement and the names received through the Exchange should be forwarded to the Selection Committee after fixing a date of selection. The Selection Committee thereupon, shall scrutinize the applications and prepare a list of eligible candidates and having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes and Scheduled Tribes and other categories, call the eligible candidates for test or interview as it may decide. After the process of selection is over, the Committee shall prepare a list of candidates in order of merit as disclosed by the marks obtained in the test or interview and in case two or more candidates obtain equal marks, the merit shall be determined on the basis of age. The number of selected candidates shall be larger but larger by not more than 25 per cent of the number of vacancies. The list shall thereupon be forwarded to the appointing authority mentioning the aggregate marks obtained at the selection by each candidates and as well as the names of the candidates of general and reserved categories.
Thus a specific procedure having been prescribed by the Regulation, the recruitments are to be made according to the said procedure. The case made out in the writ petition does not show that the petitioner has undergone this selection procedure and had competed with other eligible candidates. The order dated 3rd February, 1993 passed in writ petition No. 41255 of 1993 had never directed that the petitioner should be given appointment. On the other hand, while dismissing the writ petition, it had merely observed that the petitioner may be given preference in appointment if any such appointment is made by the respondents in case any vacancy arises. Such preference could be given to the petitioner provided other things are equal after the petitioner has undergone through the selection process. It would have given preference only if the petitioner had obtained the same marks in the selection with any one upto the last candidate and thereby, claimed a position higher than such candidates securing identical marks. The said order did not confer any other right to the petitioner nor did it issue any mandate on the respondents to give appointment to petitioner dehors the Rules. The appointment purported to have been given to the petitioner alleging to be in pursuance of the order dated 3rd February, 1993, is wholly a ploy to conceal the nature of the appointment given to the petitioner through back door dehors the Rules. By reason of such appointment, the petitioner cannot claim to have acquired any right to be governed under the said Regulation, 1984 and thereby claim the benefit of Regulation 22 for claiming confirmation on the expiry of the probation period even if the appointment letter has been attempted to be dressed with such a provision. Unless the petitioner is appointed following the Regulation 1984, he cannot claim any legal right to the post since he was, apparently, as the case has been made out in the writ petition, was appointed dehors the Rules.
2. The Learned Single Judge categorically held that appointment of the petitioner was not made respecting the statutory procedure laid down under relevant Regulations and in this context noted that post was not advertised in two leading newspapers though required under statutory procedure. We have pointedly asked the learned Counsel for the petitioner - appellant to show as to whether this finding is being challenged in appeal; the leaned counsel has failed to point out the ground. Apart from it we find nothing on record to indicate even in special appeal that the observations made by the Learned Single Judge are perverse or otherwise based on misleading evidence. Appointment having been made dehors the Rules merely that same authority (howsoever high they may be) had used word that appointment was made on probation will not change the substance and such an appointment will remain void ab initio.
3. In view of the above we find that there is no merit in the special appeal.
4. In view of the fact that petitioner was not appointed on substantive post on probation, the petitioner has no statutorily enforcible vested right in him as held by the Apex Court in the case of State of U.P. v. Neeraj Awasthi and Ors. . The appeal has no merit. It is accordingly dismissed. In the facts and circumstances of the case we make no order as to costs.