1.Hears Sri K.A. Qayyum, learned counsel for applicant and perused the record.
2.The application has been filed seeking recall of my order dated 17.1.2011 on the ground that this case was shown in additional cause list at sl. no. 7 and after lunch, in the first round learned counsel for petitioner was present but respondents Counsel was absent. In the second round he was engaged in Court no. 50 and by the time he could reach this Court, the order was passed. He made a mention at 4.00 P.M. but the Court instructed him to file recall application.
3.Order sheet, however, shows that this case was listed in the category of "old cases" on 7.1.2011when learned counsel for petitioner sought adjournment on the ground of illness whereafter it was directed to be placed on 10.1.2011, on which date the Court passed the following order:
"List has been revised. No one appears to press the petition.
Place this petition on 13th January, 2011 before the appropriate Court."
4.On 13.1.2011, on the request of learned counsel for petitioner, it was fixed for 17.1.2011 as is evident from following:
"As prayed, put up on 17.9.2011."
5.On 17.1.2011, learned counsel for petitioner did not appear. The matter was decided on merits.
6.However, today also, I gave full opportunity to learned counsel for applicant to point out any error in my order dated 17.1.2011, which I have passed after considering claim of petitioner on merits. Learned counsel for petitioner could not point out any error so far as exposition of law is concerned, but what he says is that there is a Government Order dated 8.9.2010 communicating decision of Government to various statutory bodies and public enterprises that a decision has been taken by Government for regularization of all daily wage employees engaged before 20.6.1991.
7.Be that as it may, a Government Order would have no effect so long as statutory rules providing for recruitment are not amended. It is not the case of applicant that even till date any amendment in the statutory Rules has been made entitling the petitioner to claim regularization. An executive order cannot prevail over the statutory rules. Mere executive decision cannot authorize the authorities concerned to do something which is not otherwise permitted under statutory rules. It is well settled that an executive order cannot prevail over statutory rules. In Indra Sawhney and others Vs. Union of India and others, 1992 (Suppl) 3 SCC 217 the Apex Court held that though the executive orders can be issued to fill up the gaps in the rules if the rules are silent on the subject but the executive orders cannot be issued which are inconsistent with the statutory rules already framed. In Laxman Dundappa Dhamanekar and another Vs. Management of Vishwa Bharata Seva Smithi and another, JT 2001 (8) SC 171 also the same view was taken. In K. Kuppusamy and another Vs. State of T.N. And others, 1998 (8) SCC 469 the Court said that statutory rules cannot be overridden by executive orders or executive practice and merely because the government has taken a decision to amend the rules, it does not mean that the rule stood obligated. So long as rules are not amended in accordance with the procedure prescribed under law the same would continue to apply and would have to be observed in words and spirit. In Chandra Prakash Madhavrao Dadwa and others Vs. Union of India and others, 1998(8) SCC 154 also the Apex Court expressed the same view holding that the executive orders cannot be conflicted and override the statutory rules.
8.Further, mere continuance for a long time on a post without having been recruited in accordance with statutory rules or consistent with Article 16 will not confer any right on a person to claim regularization. The right of a person not appointed after following the procedure prescribed in the statute to claim regularization has been settled by a Constitution Bench of Apex Court in Secretary, State of Karnataka Vs. Uma Devi (2006) 4 SCC 1 and referring to its subsequent follow up, recently, in the case of State of Rajasthan and others Vs. Daya Lal & others, 2011(2) SCC 429 the Apex Court has crystallized certain expositions of law as under:
"(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization 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 regularization of services of an employee which would be violative of 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 regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily- wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
(iii)Even where a scheme is formulated for regularization with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
(v) Part time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.
[See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand 2008 10 SCC 1]"
9.There is yet another recent decision in State of Orissa and another Vs. Mamta Mohanty JT 2011 (2) SC 164 wherein deprecating a claim made for regularization on the ground that incumbent was continuing for long, the Court said that the concept of adverse possession of lien on post or holding over are not applicable in service jurisprudence. Continuance of a person wrongly appointed on a post does not create any right in his favour. Reliance is placed on an earlier decision in Dr. M.S. Patil Vs. Gulbarga University & others JT 2010 (9) SC 132. Counsel for petitioner, at this stage, sought to argue that there are some others in whose favour order of regularization have been passed in 2000 while the petitioner has been discriminated. He tried to refer an order dated 21.10.2000 in respect to one person Bansh Raj Singh passed in pursuant to an order dated 24.2.1998 of this Court in writ petition no. 14007 of 1993. However, learned counsel for petitioner could not show any provision under which the nature of appointment like petitioner could have been regularized. He states that except of the order of this Court which was complied with in respect to Bansh Raj Singh, he is not in position to lay his hand to any statutory provision entitling him for such benefit. Now it is well settled that two wrongs does not make one right. Article 14 is not meant to perpetuate illegality. It does not envisage negative equality. Following a catena of earlier decisions, the Apex Court in Mamta Mohanty (supra), in para 36 held as under:
"It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief."
10.It is also observed that once the Court comes to the conclusion that an wrong order has been passed, it becomes solemn duty of Court to rectify the mistake rather to perpetuate the same. To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience.
11.In the above circumstances and considering the fact that appointment of petitioner was not in accordance with law and the recruitment to the post in question is governed by statutory rules, there does not exist any provisions under which he can claim regularization, I do not find any occasion to grant indulgence and accept the prayer for regularization.
12.In the circumstances, I do not find any reason to recall my order dated 17.1.2011. Application is rejected.
Dt. 3.3.2011 PS