JUDGMENT D. K. Seth, J.
1. The petitioner was appointed on 4th May, 1991 on daily wage basis for a period of 30 days.
Subsequently, the Deputy Director of Administration directed the Secretary, Mandi Samity, Bareilly to appoint the petitioner as Typist on a consolidated pay of Rs. 1,200 p.m. and accorded sanction for payment of salary for the period July, 1991 till November, 1991.
Subsequently by an order dated 31st March, 1992, sanction for payment of salary of Rs. 1,200 p.m. was accorded for the post held by the petitioner. By an order dated 4th September, 1992, the petitioner's service was terminated. This order was challenged by the petitioner in Writ Petition No. 4155 of 1993 since been dismissed by an order dated 3rd February, 1993, with the observation that if any vacancy arises, the petitioner shall be given preference in appointment when such appointment is made by the respondents, provided the petitioner fulfils the qualification.
Pursuant to the said judgment, the petitioner had made an application on 6th April, 1993 and continued to submit successive application on 10th June, 1994, 2nd October, 1995 and 6th January, 1996, and, thereafter, on 23rd November, 1996.
this stage, the petitioner's service has been terminated by orders dated 12th March, 1999 contained in Annexures-I and II respectively to the writ petition. These two orders have since been challenged by Mr. Mahesh Gautam, learned counsel for the petitioner in this writ petition.
2. Mr. Gautam submits that since the petitioner has been appointed against a substantive vacancy on regular basis, his service could not be terminated under the U. P. Temporary Government Servants (Termination of Service) Rules, 1975, as has been sought to be done in terms of the order of termination contained in Annexure-1 since the said Rules do not apply in the case of the petitioner, who is not a Government servant. He then contends that the petitioner is governed by the U.P. Agriculture Produce Market Committee (Centralised Service) Regulations. 1984, and is not a workman within the meaning of Industrial Disputes Act and as such, his service could not be retrenched in terms of Section 6H of the Industrial Disputes Act as has been sought to be done by virtue of Annexure-II to the writ petition. He then contends that in fact, the termination is a penalty in disguise, which can only be done in accordance with the regulations, which provide for holding of an inquiry and giving of an opportunity. In case the order of termination is a cancellation of the appointment even then the principles of natural Justice and equity requires giving of an opportunity to the petitioner. He then contends that since the petitioner was governed by the 1984 Regulations, his service could have been terminated only under the provisions of the said regulations and his service could not have been dispensed with otherwise. He had also contended that a person cannot be a Government servant and a workman under the Industrial Disputes Act simultaneously. Therefore, there is an inherent contradiction in the two orders. Inasmuch by the first order the petitioner has been treated to be a Government servant while applying 1975 Rules and at the same time by the second order, he is treated as a workman. He had also relied on a few decisions, of which a reference shall be made at appropriate stage. Mr. Gautam had also relied on Regulation 22 of the 1984. Regulations to contend that after the probation period was over, the petitioner shall be deemed to have been confirmed, provided he had satisfactorily completed the probation period. Therefore, by virtue of Regulation 22, the petitioner has been deemed to be confirmed in his service. On these grounds, Mr. Gautam submits that the impugned orders contained in Annexures 1 and 2 to the writ petition should be quashed.
3. Mr. B. D. Mandhyan, learned counsel for the respondents, on the other hand, contends that the petitioner was not regularly appointed according to the provisions contained in the Regulations, which requires publication of advertisement as well as seeking of names from the Employment Exchange. Since the petitioner was not engaged pursuant to the said Regulations, he cannot claim to be governed by the said Regulations. According to him, the petitioner having been appointed de hors the Rules, he cannot claim any legal right to the post even if he is given appointment on a substantive vacancy or a post. By virtue of the petitioner's appointment on probation on completion of satisfactory probation period, the petitioner cannot claim any right to the post since he was appointed de hors the Regulations. Unless the petitioner has a legal right to establish by invoking writ jurisdiction, he cannot get any benefit out of such termination of service. By virtue of orders dated 12th March, 1999, there cannot be said to be any infirmity. He tries to explain the said two orders that the second order is an order by which the petitioner's service was terminated and the first order is only a simple communication of the same order, which is being clarified by the second order. He further contends that the petitioner's service could be dispensed with without the said order because he cannot establish any right to the post by virtue of his alleged appointment. He further contends that the High Court had never directed in the order dated 3rd February, 1993 that the petitioner should be given appointment directly. Inasmuch it was only a preference to be given to the petitioner in case the recruitment is made against any vacancy, which imply that recruitment is to be made directly and the other things being equal, the petitioner is entitled to a preference. He also relies on a number of decisions, where such questions have been gone into. Reference shall be made to those decisions at appropriate stage. Mr. Mandhyan on these grounds contends that the writ petition should be dismissed.
4. I have heard both the learned counsel at length.
5. The facts as disclosed show 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 be reserved under Regulation 11 for Scheduled Castes and Scheduled Tribes and others. Once such vacancy is determined the posts are to be advertised in one or two leading newspapers of the Slate 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 not larger by more than 25 percent 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 candidate and as well as the names of the candidates of general and reserved categories.
6. 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, claim 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 the petitioner de hors 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 de hors 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 de hors the Rules.
7. In the case of State of Himachal Pradesh v. Suresh Kumar Sharma, 1996 (2) SLR 321, the Apex Court had held that the Judicial process cannot be utilized to support a mode of recruitment de hors the Rules.
8. In the case of State of Haryana v. Piara Singh, AIR 1992 SC 2130, the Apex Court had deprecated entering into service through back door.
9. Unless a person establishes his right to a post, he cannot claim any legal right. Unless the appointment confers legal right on the candidate, he cannot enforce the same by invoking writ jurisdiction.
10. Mr. Mandhyan had pointed out that innumerable candidates have been appointed through back door creating a heavy burden on the Mandi Parishad flouting the Regulations. It seems that there are some substance in the submission of Mr. Mandhyan, who had also mentioned in the short counter-affidavit and the factum whereof has in some cases already been taken note of, which Mr. Mandhyan had stated in this case. In fact. In the other decisions cited by Mr. Mandhyan, this fact has been taken note of. It appears that appointments which are not being made according to Regulations has since been sought to be dispensed with.
11. Mr. Gautam had taken objection to the extent that a particular date has been selected instead of dispensing with the service of all others. That question cannot be agitated in this writ petition by the petitioner, claiming equity or equality in terms of Article 14 since at the time of his initial entry, he himself had come in without any regard being had to Articles 14 and 16. Inasmuch as selection without following the procedure laid down in the Regulation of eligible candidates who were eligible and had a right to be considered, were ignored and the petitioner has over-stepped the equity consideration or equality in the eye of law as contemplated in Articles 14 and 16 of the Constitution of India. Then again, there cannot be any equality in illegality. It is a decision on the policy of the organization on the basis whereof such a cut off date has been introduced. Whether the cut off date that has been introduced is valid or illegal, cannot be gone into within the scope and ambit of this writ petition since this question has not been raised as it appears from the prayers made in the writ petition. Unless such a question is raised, only on the basis of the statement made at the the Bar, this Court cannot go into such question in absence of the pleadings and the prayers. The rules of pleadings are meant for giving opportunity to the other side, and that was the reason why the Court is supposed to confine within the pleadings. Unless rules of pleadings are followed, advancement of such argument will spring surprise on the other side.
12. Be that as it may, in view of the observations made above, I also do not find any substance in the submission of Mr. Gautam with regard to the cut-off date particularly in absence of any material to show that the cut-off date was arbitrary or otherwise. Except such argument, no material has been shown to the court as to how introduction of such cut-off date was arbitrary.
13. In case such appointments are allowed to continue, in that event it would have the effect the obliterating the principles enunciated in Articles 14 and 16 of the Constitution which requires that there should be an equality and equal treatment in the eye of law as well as equal opportunity of employment. In case individuals are given appointment through back door, not only the petitioner who has been so given, in that event all other eligible candidates who had a right to be considered would be excluded in violation of Articles 14 and 16. Therefore, in these circumstances, the High Court cannot come in aid of the petitioner to invoke writ jurisdiction in absence of any legal right as has been observed hereinbefore.
14. The question as to whether 1975 Rules relating to termination of temporary Government servant apply or not, is not required to be gone into in view of the observations made hereinbefore.
15. Mr. Gautam had relied on a decision in the case of Smt. Mahendra Kaur v. Hafiz Khalil and others, 1983 AWC 837, rendered by the Full Bench in support of his contention that where specific rules have been provided, the same are to be followed. But the said decision does not help Mr. Gautam on two grounds. First that the said decision was with regard to certain procedure relating to the Code of Civil Procedure for substitution and addition of parties, which has nothing to do with service jurisprudence. Secondly, the petitioner has not been able to establish that he is governed by the 1984 Regulation in order to claim that his service could be terminated only in terms of the provisions contained in the said Regulation. Therefore, he cannot derive any benefit out of the ratio decided in the said decision.
16. Mr. Gautam had also relied on a decision in the case of R. C. Tewari v. M. P. State Co-operative Marketing Federation Limited, JT 1997 (5) SC 95, which was a decision on the question of reference under Section 10 of the Industrial Disputes Act, 1947. I have gone through the said Judgment. The said decision has no manner of application in the facts and circumstances of the present case since the said decision proceeds on the basis of altogether a different and distinct facts and circumstances, which by no stretch of imagination could be attracted in the present case.
17. Mr. Gautam had also relied on a decision in the case of Syed Aiaz v. Mohammad Rafiq and others, AIR 1974 All 178 (FB). Relying on paragraph 8 of the said decision, he had contended that in absence of the expression statutory provision an authority cannot pass an order as has been done in the present case while passing an order of termination, which is de hors 1984 Regulation. For the reasons given hereinbefore, the ratio decided in the said Full Bench decision also cannot be attracted in the present case. That apart, the said decision was related to the exercise of jurisdiction by the Tribunal, where the reference was as to whether the Government cancelling the order of allotment and directing release of the accommodation in favour of the landlord passed the revision filed under Section 7 of the Rent Control and Eviction Act. Is an order passed under sub-section (2) of Section 7 of the Rent Control and Eviction Act within the meaning of Section 7A of the Act. Therefore, the said decision was passed altogether on a foundation, the principle whereof could hardly be held to support the contention of Mr. Gautam in the facts and circumstances of the present case.
18. Mr. Gautarn had relied on a decision in the case of Mohinder Singh v. Chief Election Commissioner, New Delhi and others, AIR 1978 SC 851. He confined his argument on paragraph 8 of the said Judgment to contend that unless it is indicated in the order itself, no other ground can be imported to support such order by means of counter-affidavit. Inasmuch as in the order, it has not been contended that the petitioner's appointment was de hors the Rules. On the other hand, it has been sought to be terminated by the First order as one under the 1975 Rules for temporary Government servants and the second one under Section 6H of the Industrial Disputes Act to uphold the expression used in paragraph 8 of the said decision. There is no doubt that Mr. Gautam's submission has some substance because "orders are not like old wine becoming better as they grow older." This proposition is settled principle of law. But the question is whatever might be the motive, the order has to be tested as is coined. In the present case, there being two orders, one may supplement the other. Even if the First order is an order of termination simpliciter, the Second order shows that it is an order of retrenchment giving one month's notice. In case the petitioner is not governed by the 1984 Regulation, in that event, he cannot claim that the Order is bad when he has been given one month's notice, particularly when there is nothing to show that the petitioner was confirmed after having been appointed following the 1984 Regulation. Unless he is governed by the regulations, he cannot claim any benefit out of the 1984 Regulations. Whereas, if he is not governed by 1984 Regulations, he can at best be considered workman within the meaning of Industrial Disputes Act. Therefore, the decision in the case of Mohindra Singh Gill (supra) also does not come to the rescue of the petitioner.
19. So far as the submission that a person cannot be Government servant and a workman under the Industrial Disputes Act simultaneously is concerned, the above does not appeal to me for the simple reason that nowhere the petitioner has been treated to be a Government servant by the respondents. Nos. 1 have held that the petitioner was a Government servant. Even without the 1975 Rules, the service of a person can be terminated with one month's notice in some circumstances.
20. In the present case, the petitioner has not been able to show a right to the post and, therefore, he cannot place his case on a decision as claimed by Mr. Gautam. Whether, he is a Government employee or a workman is not a question to be gone into in this case in view of the observations made earlier. This Court has not exercised its discretion to invoke writ Jurisdiction simply on the ground that the petitioner has not been able to establish his legal right to hold the post or continue in the post. In order to secure the same by this Court to support the appointment de hors the Rules or mode of recruitment de hors the Rules, which this Court refused to lend support.
21. Identical question had cropped up before this Court in various cases, which have been decided by this Court and a reference may be made thereto in the passage following.
22. In respect of several other cases identical question was posed to this Court which were decided on diverse dates. In the decision decided on 20.11.1997 in Writ Petition No. 35830 of 1997, Employees Union of Assistants v. Director, U. P. Krishi Utpadan Mandi Parishad and others, in similar circumstances, it was held that the petitioners therein do not have any right to the post by virtue of their employments which were all time bound. In Special Appeal No. 3 of 1998 the order passed in Writ Petition No. 35830 of 1997 dated 20.11.1997 has since been confirmed by the appellate Court. Yet in another decision dated 29.1.1998 in the Writ Petition No. 2879 of 1998, Raghuvendra Nath Misra v. Krishi Utpadan Mandi Parishad and others, the same view was taken by another learned single Judge. Identical view was taken by another learned single Judge in his order dated 6.8.1998 passed in Writ Petition No. 25272 of 1998, Mohan Pandey v Director/Additional Director of Rajya Krishi Utpadan Mandi Parishad and others. In the Writ Petition No. 7612 of 1998, decided on 6.3.1998, Harendra Kumar v. Secretary, Rajya Krishi Utpadan Samiti and others, I had taken a view that unless a person claims a right to the post, he cannot claim any legal right to establish through writ Jurisdiction and that the recruitment de hors the rule does not confer any right to continue. In the decision dated 18.3.1999 passed in Writ Petition No. 10204 of 1999, Awadh Narain and another v. State of U. P. and others, I had held in order to invoke writ Jurisdiction, one must establish that he has legal right which he could enforce through writ jurisdiction. Right to work is a right to livelihood but that does not mean that in every case the said principle would apply even when appointment is made orally on daily wage basis to serve a temporary need through stop gap arrangement. One has to show that he has acquired a right to the post in order to claim a right to livelihood. Unless right to post is established, one cannot claim infringement of the right of livelihood. One cannot expect such right to be established de hors the Rule. Such decision was arrived at relying on the decision in the case of Himanshu Kumar Vidyarthi v. State of Bihar, 1997 (76) FLR 237, of the apex court, and some other decisions mentioned in the said Judgment.
23. For the foregoing reasons, the petitioner having been unable to establish any legal right as observed hereinbefore, this writ petition fails and, is accordingly, dismissed. There, will, however, no order as to costs.