JUDGMENT Sudhir Agarwalx J.
1. Heard Sri S.C. Srivastava learned Counsel for the petitioner and the learned Standing Counsel for respondent nos. 1 and 2.
2. The learned Counsel for the petitioner submits that the petitioner was appointed on a consolidated pay of Rs. 1200/- per month on contract basis on as application submitted by him before the Adhyaksh, Nagar panchayat, Khanpur, District Bulandshshar on 8.7.2002 whereupon an order was passed appointing the petitioners as a peon. A copy of the petitioner's application as well as endorsement thereon showing his appointment on contract basis on fixed salary of Rs. 1200/- is Annexure-1 to the writ petition. The petitioner, however, submits that since then he is counting to discharge his duties. On 3.7.2003, a meeting of the Nagar Panchayat took place wherein it was resolved that since there is a vacancy of scheduled caste candidate working on contract basis, he may be regularized on the said post. A copy of this resolution has been filled as Annexure 4 to the writ petition. However, it is stated by the petitioner that no action has been taken in pursuance of the said resolution. Since he has been working for more then three years, therefore, in law he is entitled to be considered for regularization. Reliance has been placed on the Government Order dated 3.2.1992 (Annexure 8) and the law laid down by the Hon. Supreme Court in the case of State of Haryana and Ors. v. Piara Singh and Ors. AIR 1992 SC 2130.
3. It is not disputed by the petitioner that before his appointment there was no advertisement or invitation of application from eligible incumbents against the vacancy which is said to be existing on the office of the Nagar Panchayat, Khanpur. The petitioner was appointed on contract basis and not on regular basis. The appointment was not in accordance with statutory rules. In other words, the appointment of the petitioners was nothing but a back door entry. Since, on his application submitted before the Nagar Panchayat, he was given appointment on contract basis on consolidated salary of Rs. 1200/-, such appointment does not confer any legal right either to consider or to claim regular appointment against substantive or permanent vacancy. Whenever there is a vacancy in the public office, it is obligatory to the state to fill up the same by affording right of consideration to all eligible and suitable persons, who are aspiring for a job in the State and awaiting the opportunity of consideration. Thus, the vacancy should be notified to all, and thereafter the recruitment should be made as per rules which would be in conformity with Article 16 of the Constitution of India also.
4. The Apex Court on the case of Piara Singh (Supra) considered the validity of the Government Orders providing scheme for regularization and observed as follows:
The court cannot obviously help those who cannot get regularized under these orders for their failure to satisfy the conditions prescribed therein. Issuing general declaration of indulgence is no part or our jurisdiction. In case of such persons we can only observe that it is the respective Government to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and were eligible and qualified on the date of their adhoc appointment and further whose record of service is satisfactory.
5. The question as to whether the appointment on a post in State can be made without advertising the vacancies and inviting application from public at large came up for consideration before the Apex Court in a catena of cases.
6. In Ashok Kumar and Ors. v. Chairman, Banking Service recruitment Board and Ors. , the Supreme Court held as under:
The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution.
7. Again in the case of Prem Singh and Ors. v. Haryana State Electricity Board and Ors. , the Supreme Court held as under:
If the requisition and advertisement are for a certain number of posts only, the State Cannot make more appointments than the number of posts advertised.
8. Subsequently in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors. , the Apex Court Held as under:
As per the scheme of the Act and the aforesaid provisions, for each academic year in question, the management has to intimate the existing vacancies and vacancies likely to be caused by the end of the ensuing acasdemic year in question. Thereafter, the Director shall notify the same to the Commission and the Commission , in turn, will invite applications by giving wide publicity in the State of such vacancies. The vacancies cannot be filled except by following procedure as contained therein, Sub- section (1) of Section 12 has incorporated in strong words that any appointment made in contravention of the provisions of the Act shall be void. This was to ensure to back door entry but selection only as provided under the said sections.
9. Deprecating the practice of claim for regular appointment on post merely on the ground of long continuous service the apex Court in the case of Dr. Arundhati A. Pargaonkar v. State of Maharashtra AIR 1995 SC 962, held as under:
Nor the claim of the appellant, that she having worked as Lecturer without break for 9 years on the date the advertisement was issued, she should be deemed to have been regularized appears to be well founded. Eligibility and continuous working for howsoever long period not be permitted to over-reach the law. Requirement of rules of selection... cannot be substituted by humane considerations. Law must take its course.
10. In Binod Kumar Gupta v. Ram Ashray Mahoto and Ors. (2005) SCC 209, the Apex Court refusing to permit continuance in service after 15 years observed as under:
If we allow the appellants to continue in service merely because they have been working in the posts for last 15 years we would be guilty of condoning a gross irregularity in their inutial appointment.
11. In the case of Surendra Kumar Sharma v. Vikas Adhikari 2003(1) SCC 12, the Apex Court noticed its earlier judgment in Delhi Development Horticulture Employees Union held as under:
A good deal of illegal employment market has developed resulting in a new source of corruption and Frustration of those who are waiting at the employment exchanges for years. Not all those who gain such back door entry in the employment are need of the particular jobs. Through already employed elsewhere, they in the jobs for better and secured prospects. That is why most of the cases which come to the Courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time bound and there is no need of the workmen beyond the completion of work undertaken. The public interests are thus jeopardized on both counts.
12. Lastly a three judges Bench of the Apex Court in A Umarani v. Registrar Cooperative Society and Ors. after a review of the entire earlier case law, in para 39, 40 and 41 observed as under:
39. Regularization, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed hereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would illegal. Such illegality cannot be cured by taking recourse to regularization.
40. It is equally well settled that those who come by back door should go through that door.
41. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature.
13. A division bench of this Court also, following large number of the Apex Court Judgments, in the case of District Judge, Bagphat v. Anurag Kumar and Ors. Special Appeal No. 702 of 2005 decided on 31.5.2005, held as under;
Appointments made in contravention of the statutory provisions remain inexecutable.
14. In the present case the petitioner has not claimed regularization under any statutory provision. The Government Order dated 3.2.1992 filed by the petitioner as Annexure 8 to the writ petition is of no help to the petitioner. A bare perusal of the aforesaid Government Order shows that it was a one time measure undertaken by the Government to regular persons who were appointed prior to 11.10.19898 and have worked for 240 days on each year and also completed three years service. It is inapplicable to the case of petitioner.
15. In the above circumstances. I do not find any merit in the writ petition, accordingly it is dismissed summarily.