1. Request has been made on behalf of petitioner by Sri Kuldeep Pati Tripathi, learned counsel for the petitioner, to adjourn the matter for today but looking to the order-sheet as also the fact that connected matter, i.e., Service Single No. 3901 of 2012, has already been decided long back on 18.09.2012, this Court is not inclined to adjourn the same.
2. Since learned counsel for the petitioner has not assisted the Court, I myself have perused the record and proceed to decide the matter finally.
3. Sri Aditya Tiwari, Advocate is present for respondents.
4. Writ Petition No. 7181 (SS) of 1996 (hereinafter referred to as the "first petition") has been filed by Devi Prasad Mishra challenging the order dated 29.10.1996, whereby the Director, Local Body has informed Chairman, Nagar Palika Parishad, Sultanpur that post of Junior Engineer in Nagar Palika is a centralized post and power of appointment vests in State Government, therefore, no appointment made at local level by Nagar Palika could be valid and hence appointment of petitioner as Junior Engineer in Nagar Palika Parishad at local level should not be considered.
5. Writ Petition No. 1925 (SS) of 2003 (hereinafter referred to as the "second petition") has been filed by Devi Prasad Mishra seeking a writ of certiorari for quashing the order dated 10.03.2003, whereby the Director, Local Body has written a letter to Chairman, Nagar Palika Parishad, Sultanpur inquiring as to how and in what manner petitioner has been appointed. He has also sought a writ of mandamus commanding the respondents to allow him to discharge duties as Junior Engineer in Nagar Palika Parishad, Sultanpur and to give him all benefits.
6. The facts, stated in first petition, are that petitioner was initially appointed on daily wage basis in District Rural Development Agency, Sultanpur on 18.01.1996, where he worked upto 16.04.1996. The Chairman, Nagar Palika Parishad on 07.02.1996 wrote a letter to Chief Development Officer, Sultanpur seeking his approval for allowing petitioner, to look after the work of Junior Engineer in Nagar Palika Parishad. It is alleged that thereon the Chief Development Officer permitted petitioner to look after technical aspect of work at Nagar Palika Parishad in addition to his function as Junior Engineer, District Rural Development Agency. In furtherance thereof, Sri Bhola Nath Agrawal, the then Adhyaksha, Nagar Paliak Parishad, Sultanpur passed an order dated 29.02.1996, authorizing petitioner to technically supervise certain work of Nagar Palika Parishad.
7. Thereafter petitioner moved an application to Chairman, Nagar Paliaka Parishad that he may be appointed as Junior Engineer on the vacant post. Proceeding thereon, Adhyaksha, Nagar Palika Parishad appointed petitioner as Junior Engineer on wholly temporary basis, subject to approval by State Government vide order dated 17.04.1996. The appointment order also says that till approval is given by Government, salary of petitioner shall be paid by Nagar Palika Parishad. The aforesaid appointment of petitioner is said to have been approved by resolution dated 23.05.1995 passed by Nagar Palika Parishad. Consequentially another appointment letter dated 28.05.1996 was issued by Adhyaksha appointing petitioner on the post of Junior Engineer in the pay scale of Rs. 1400-1800/-, subject to approval of Director.
8. It is this appointment which has been disapproved by Director on the ground that post of Junior Engineer, being centralized post, is governed by U.P. Palika (Centralized) Services Rules, 1966 (hereinafter referred to as the "Rules, 1966"), and power of appointment is conferred upon State Government, therefore, appointment of petitioner by Adhyaksha, Nagar Palika Parishad is patently illegal and contrary to Rules, 1966. This order of Director was challenged in first writ petition. While entertaining the writ petition, as fresh, on 19.11.1996, an ex parte interim order to the following effect was passed by this Court:
"Ten days time allowed to learned Standing Counsel to seek instructions.
Till then the implementation of the impugned order anneuxre-1 shall remain stayed."
9. It is pursuant thereto the petitioner has continuously been working on the post of Junior Engineer.
10. It appears that one, Harihar Prasad Yadav was already a Junior Engineer, working in Nagar Palika Parishad Sultanpur. The Chief Development Officer made a surprise inspection on 07.02.2003 and found that there is already a substantively appointed Junior Engineer in Nagar Palika Parishad yet petitioner has been appointed and continuing pursuant to an interim order passed by this Court, therefore, he submitted a report that effective pairavi be made in the pending writ petition since appointment of petitioner is patently illegal. Pursuant thereto, the Director, Local Body issued letter dated 10.03.2003 inquiring as to who appointed petitioner and also directing Adhyaksha, Nagar Palika Parishad to take work from substantively appointed Junior Engineer, Sri Harihar Prasad Yadav. It is this order which has been challenged in the second petition and here also I find that an ex parte interim order was passed while entertaining writ petition, as afresh, on 07.04.2003 to the following effect:
"Admit.
Notice on behalf of opposite parties no. 1, 2 and 4 has been accepted by the learned Chief Standing Counsel. Notice on behalf of opposite party no. 3 has been accepted by Sri D.K. Tripathi who prays for and is granted four weeks time to file counter affidavit.
The petitioner is working on the basis of the interim order passed by this Court in Writ Petition No. 7181 (SS) of 1996.
In view of the aforesaid facts the operation and enforcement of the impugned order dated 10.3.2003 shall remain stayed."
11. From the record it cannot be doubted that recruitment and conditions of service of Junior Engineer, in Nagar Palika Parishad in question, is governed by Rules, 1966. As per Rule 6(1)(ii) the post of Junior Engineer (Civil) is in Schedule 2 of Rules, 1966 and can be filled in by direct recruitment through U.P. Public Service Commission. The appointing authority is the State Government. Even the power of making temporary or ad hoc appointment under Rule 31 of Rules, 1966 has been conferred upon State Government. Therefore, Rule 68 of U.P. Municipalities Act, 1916 (hereinafter referred to as the "Act, 1916") is not applicable in the case in hand since it is not applicable to centralized service rules. The appointment of petitioner is apparently illegal and without jurisdiction. The Chairman, Nagar Palika Parishad or the Board, itself has/had no authority or jurisdiction, whatsoever, to appoint petitioner on the post of Junior Engineer. That being so, petitioner has no right to hold the post or to continue in service.
12. It is really unfortunate that a patently illegal appointment has been made by then Chairman, Nagar Palika Parishad on 17.04.1996 and 28.05.1996 and such an illegal appointment has continued throughout pursuant to an interim order passed by this Court in first petition on 19.11.1996. Continuance of service pursuant to an interim order, where the incumbent has no right to hold the post, does not confer any right upon such incumbent to claim any benefit on account of such continuance.
13. Continuance to serve under an interim order would not confer any benefit upon petitioner. It is well established that act of the court shall prejudice none. The services rendered pursuant to an interim order would not give any benefit to petitioner. This issue has been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under:
"An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of U.P. AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:
"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."
The same principal has been reiterated in the following cases:
(A)AIR 1975 Allahabad 280 Sri Ram Charan Das V. Pyare Lal.
"In Shyam Lal Vs. State of U.P., AIR 1968 All 139 a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed."
(B)1986 (4) LCD 196 Shyam Manohar Shukla V. State of U.P.
"It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal V. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."
(C) AIR 1994 Allahabad 273 Kanoria Chemicals & Industries Ltd. v. U.P. State Electricity Board.
"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."
14. Recently also in Raghvendra Rao etc. Vs. State of Karnataka and others, JT 2009 (2) SC 520 the Apex Court has observed:
"It is now a well-settled principle of law that merely because an employee had continued under cover of an order of Court, he would not be entitled to any right to be absorbed or made permanent in the service. ............."
15. A supplementary affidavit has been filed in second petition stating that since petitioner is now continuously working for the last more than one and half decade, therefore, he should be directed to be regularized.
16. The claim for regularization based on mere continuance in service on the basis of interim order passed by this Court is thoroughly misconceived for the reasons already stated above.
17. Even otherwise, in order to hold an office or appointment in State, moreso where the funds are being released from State Exchequer for payment of salary to the appointees, it goes without saying that State has to make appointments following the process of open recruitment, giving equal opportunity of consideration to all concerned. In other words, an appointment has to be made in such a case by State or its authority following procedure, which is consistent with Article 16(1) of the Constitution. It includes advertisement of vacancies i.e. notifying to the Employment Exchange, advertisement in newspaper and/or other means.
18. In State of Orissa and Anr Vs. Mamata Mohanty, 2011 (3) SCC 436, the Court said:
"....some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. Even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television ...."
19. The Court further said that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates. In that case, appointments were made after notifying vacancies to Employment Exchange and putting a note on the notice board. The Court condemned it and said:
"If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered."
20. The Court went on to observe that a person appointed illegally or not employed after following procedure consistent with Articles 14 and 16, shall not be entitled for salary. The Court said:
"A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance of the said Constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit."
21. It is interesting to notice that in State of Orissa and Anr Vs. Mamata Mohanty (supra), the Court also observed that if a person has continued to work, that by itself will not confer any right upon him since principle of holding over or concept of adverse possession is not applicable in service jurisprudence. Relying on its earlier decision in Dr. M.S. Patil Vs. Gulbarga University and Ors., AIR 2010 SC 3783, the Court said:
"The concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Therefore, continuation of a person wrongly appointed on post does not create any right in his favour."
22. In order to claim regularization, it has to be kept in mind as to what is the concept of regularization. In other words, what are the necessary constituents or indicias, which must exist so as to entitle a person to claim regularization in employment having not been appointed in accordance with law. Moreso, whether statute permits such regularization is another necessary aspect, which has to be seen.
23. The appointments in public services are made in various ways. The purest form of appointment is one which is made following the procedure laid down in statute consistent with Article 16 of the Constitution of India. When a vacancy on a civil/public post is available, it is made known to every one, eligible and willing, to apply therefor, so as to be considered thereagainst. It conforms the fundamental right of equal opportunity of employment to all qualified and willing persons for such employment. When this opportunity is given and appointment is made after following procedure prescribed in statute, the appointment is absolutely just, valid and called the purest form of appointment.
24. Then comes an appointment, where vacancies are advertised, consideration for employment is afforded to all qualified and willing but in the process of selection and appointment there is some procedural defect which may not affect the very appointment at its root. Such an appointment at the best can be an irregular appointment which may confer a right upon the appointee to continue and hold the post subject to subsequent rectification or validation by competent authority, expressly or impliedly.
25. Then comes an appointment, fortuitous in nature, made in certain exigencies. For example, a short term, stop gap, officiating, daily wage etc., which normally is opted when requirement and tenure is precarious and by the time, procedure is followed, very purpose would stand frustrated. Such appointments are made normally by pick and choose method, i.e., whosoever come and apply, whether after getting knowledge on his own or otherwise, is given opportunity to serve for the limited purpose and tenure, which is called, sudden requirement and exigency of situation. Such appointments do not confer any right upon the appointee, either to hold post for a long time or to get the post in substantive manner. Above exception, though it deprives right of equal opportunity of consideration to all eligible and willing persons by advertising the vacancy etc., but has been permitted only for the reason that requirement is sudden, tenure is precarious and delay may cause greater public loss. Otherwise, such appointments, in other words, comes in the category of illegal when tested on the anvil of Article 14 and 16 of the Constitution. One can say that applying doctrine of reasonable classification and considering fortuitous nature of requirement and process followed for its achievement, per se it may not be termed as illegal so long as that requirement is there but in case it is extended so as to confer a benefit more than such requirement, it will cross the dotted line of validity and will enter in the realm of "illegality". Such appointments have been held void ab initio and not entitled to confer any right upon appointee so as to claim a substantive right on the post in his holding, in whatever capacity, whether daily wager, officiating, ad hoc etc.
26. The maxim 'dura lex, sed lex', which means "law is hard but it is the law", in my view, aptly applies in the cases where incumbents have come to an office not following procedure consistent with constitutional requirement of Article 16(1) but otherwise and thereafter having worked for sometime, claim equitable and other consideration for sustaining their entry and occupancy of the office for all times to come. In Raghunath Rai Bareja and another Vs. Punjab National Bank and others, 2007(2) SCC 230 it is said:
"When there is a conflict between law and equity, it is the law which has to prevail . . . . . Equity can only supplement the law, but it cannot supplant or override it."
27. It has been followed in State of Uttaranchal and Anr. Vs. Rajendra Singh Kandwal 2011(5) AWC 5075 (SC).
28. The Constitution Bench in Secretary, State of Karnataka Vs. Uma Devi 2006 (4) SCC 1 has held that illegal appointments cannot be asked to be regularized as that would amount to violating the fundamental right of equal opportunity of employment to those who have been denied such opportunity. The Constitution Bench decision has overruled dozens of earlier decisions taking a view otherwise so as to show sympathy in favour of those who got or managed their appointments illegally, i.e., without complying the requirement of equal opportunity of employment to all others, came to the office on account of their individual resources and managing continuance for quite some time or long time, then claim a substantive right on the basis of long tenure, they have managed to continue. In other words, the incumbent comes to the office by virtue of a pick and choose method, usurps office by back door or whatever other term one may use, despite obviously it being short of compliance of requirement of Article 16(1) of the Constitution, but having maintained such benefit to continue for quite some time which normally has the support of appointing authorities also, the beneficiary comes to claim a sense of sympathy on the basis of such long continued usurpation of office. In other words, a violator of law claims a substantive right for having violated law continuously for quite a long time with regard to a public office.
29. In the matter of appointment there is no principle of adverse possession but a plea somewhat similar thereto many a times is raised that since one has continued to work for quite long time, now he should be allowed to stay in the office for rest of tenure otherwise his family would suffer. A situation is created where sympathy is sought not in favour of victims, i.e., those who were denied right of equal opportunity of employment but in favour of those who have violated law, contravened it, breached it with impunity, and, have continued to do so for quite some time, and now, boldly and blatantly claim a kind of right to retain such benefit of breach of law, for all times to come, and, for that purpose, various pleas in the name of equity, sympathy, compassion etc. are raised and pleaded. Many a times, such claim has found favour in the Courts of Law. Fortunately, the Constitution Bench, after having a retrospect of all earlier authorities, has taken a clear stand against such kind of favour shown to those who have come in public office, by denying right of equal opportunity to others. The Court in unequivocal terms has observed that any favour shown to such violators would be a misplaced sympathy.
30. Regularisation Rules, if any, is an attempt to give a cover to such illegal appointments and, therefore, may have to be tested on the anvil of constitutional validity under Article 14 and 16(1) of the Constitution. However in the present case, no such Rule exists. If exists, then also, every requirement entitling a persons to be considered for regularization must be held to be mandatory and any deviation therefrom will either disentitle the claimant from such benefit or any attempt by executive otherwise would render such action of even executive authority, ultra vires.
31. After Uma Devi (supra) there is a chain of authorities wherein the above view has been followed and some of the authorities which tried to take a different view, subsequently, have been overruled and clarified. Some of the recent authorities, in this regard, just to recapitulate and remind the exposition of law with regard to regularization may be referred to hereat.
32. Commenting upon one time scheme of regularization, in State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429, the Court in para 12 of the judgment said:
"12. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour v. Union of India 1988 (1) SCC 122, Bhagwati Prasad v. Delhi State Mineral Development Corporation 1990 (1) SCC 361 and Dharwad District PWD Literate Dalit Wage Employees Association v. State of Karnataka 1990 (2) SCC 396. These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance."
33. In Union of India and others Vs. Vartak Labour Union, 2011(4) SCC 200 in para 16 of the judgment the Court said:
"16. We are of the opinion that the Respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1; Official Liquidator v. Dayanand and Ors. (2008) 10 SCC 1; State of Karnataka and Ors. v. Ganapathi Chaya Nayak and Ors. (2010) 3 SCC 115; Union of India and Anr. v. Kartick Chandra Mondal and Anr.; Satya Prakash and Ors. v. State of Bihar and Ors. (2010) 4 SCC 179 and Rameshwar Dayal v. Indian Railway Construction Company Limited and Ors. 2010) 11 SCC 733." (emphasis added)
34. In Brij Mohan Lal Vs. Union of India and others, 2012(6) SCC 502, dealing with Fast Track Courts, the Court referred to the Constitution Bench decision in Uma Devi (supra) and said that therein the principle has been laid down that in matters of public employment, absorption, regularization or permanent continuance of temporary, contractual or casual daily wage or ad hoc employees appointed and continued for long in such public employment would be de hors the constitutional scheme of public employment and would be improper.
35. In University of Rajasthan and another Vs. Prem Lata Agarwal, 2013(3) SCC 705 after referring to the dictum in Uma Devi (supra), the court observed that when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by relevant rules/procedure, he is aware of the consequences of appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed on a post when an appointment on the post could be made only by following proper procedure.
36. Recently in Amarendra Kumar Mohapatra and Ors. vs. State of Orissa and Ors., 2014(2) SCALE 589; Nand Kumar Vs. State of Bihar & Ors., 2014 (3) AWC 2378 (SC); Secretary to Government, School Education Department, Chennai & Ors. Vs. Thiru R. Govindaswamy and Ors. (2014) 4 SCC 769 and Director, Printing and Stationary Department, U.P. Government Press & Ors. Vs. Moti Lal and Ors., (2014)2UPLBEC1193, the Court has reiterated and followed Constitution Bench decision in Secretary, State of Karnataka and Ors. Vs. Umadevi (3) and Ors., 2006 (4) SCC 1;
37. In Nand Kumar Vs. State of Bihar (supra), referring to Uma Devi (supra), the Court said that the daily wagers are not appointees in the strict sense of the term 'appointment'. They do not hold a post. They cannot therefore claim any benefit of regularization. The Court observed:
"Appointment on daily wage basis is not an appointment to a post according to the rules. Usually, the projects in which the daily wagers were engaged, having come to an end, their appointment is necessarily terminated for want of work. Therefore, the status and rights of daily wagers of a Government concern are not equivalent to that of a Government servant and his claim to permanency has to be adjudged differently." (emphasis added)
38. It is not the case of petitioner that he is entitled to be considered for regularization under some statutory provision or there is any scheme enforceable in law, formulated by respondents which entitled petitioner to claim regularization.
39. In view of the above discussion, claim set up by petitioner for regularization must fail.
40. Both the writ petitions, therefore, lack merit. Dismissed with costs of Rs. 20,000/- for each set of writ petition. This Court also gives liberty to the State Government to recover the amount of salary which it has paid to petitioner on account of illegal appointment made by the then Chairman, Nagar Palika Parishad, Sultanpur by initiating appropriate proceedings against the then Chairman and also the Executive Officer, as the case may be.
Order Date :- 19.08.2014 AK