JUDGMENT B.S. Chauhan, J.
1. Delay condoned.
2. Heard Shri Udai Karan Saxena, learned counsel for the petitioner-appellant and Shri H.R. Mishra, learned counsel for respondents.
3. This special appeal has been preferred against the judgment and order dated 19.1.2004 of the learned Single Judge dismissing the writ petition of the petitioner-appellant for regularisation.
4. Facts and circumstances giving rise to this case are that petitioner-appellant had been appointed on daily wages on 12.6.1986 and his services had been extended from time to time and the same were terminated w.e.f. February, 1990. Petitioner-appellant filed Writ Petition No. 11004 of 1991 claiming the relief of allowing him to continue in service and regularise him. The learned Single Judge dismissed the writ petition vide impugned judgment and order dated 19.1.2004 on the ground that his appointment was on daily wage basis; his employment commenced in the morning and ended in the evening every day; there was no condition in his appointment letter for renewal of the engagement, placing reliance upon the judgment of the Hon'ble Apex Court in Escorts Limited v. Presiding Officer and Anr., (1997) 11 SCC 521.
5. Learned counsel for the petitioner-appellant has submitted that as petitioner-appellant had worked for about 4 years, he could not be removed so unceremoniously and was entitled to regularisation, particularly in view of the statutory provisions of the Uttar Pradesh. Regularisation of ad hoc Appointments (On Posts Belonging to Co-operative Societies Centralised Services) Rules, 1985 (hereinafter referred to as the Rules 1985). The judgment and order of the learned Single Judge is liable to be set aside, particularly, in view of the fact that in similar circumstances Writ Petition Nos. 21438 of 1989 etc. etc. filed by other persons had been allowed by this Court vide judgment and order dated 8.10.1991, and the said judgment of the learned Single Judge stood affirmed by the Division Bench in Special Appeal No. 119 of 1991 dated 20th November, 1991. The said order of the special appeal further stood affirmed by the Hon'ble Supreme Court as the Hon'ble Apex Court has rejected the Special Leave Petition No. 3796 of 1992 filed against that special appeal vide order dated 2.9.1992.
6. On the other hand, Shri H.R. Mishra, learned counsel appearing for respondents has submitted that the issues agitated in the appeal had not been raised before the learned Single Judge. The Rules 1985 are not applicable in case of the petitioner-appellant as it apply only in respect of those persons who had been employed on or before 1st May, 1983 and were continuing in service on the date of commencement of the said Rules, i.e. 30th July, 1985 and had completed 3 years continuous service. As the petitioner-appellant was appointed in 1986 itself, the said Rules have no application. The judgments relied upon by the petitioner-appellant are also distinguishable on facts, more so, it cannot be followed as a binding precedent for the reason that the issue that a person who had been appointed de hors the Rules cannot seek regularisation, had not been agitated in those cases. Unless the issue is decided by the Court, it cannot have a binding force. If a person is appointed de hors the Rules, he cannot seek regularisation. Hence the judgment of the learned Single Judge does not require any interference and the appeal is liable to be dismissed.
7. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
8. Admittedly, the Rules 1985 are not applicable in the case of the petitioner-appellant as they were applicable only in respect of those employees who had been appointed on ad hoc basis on or before 1st May, 1983 and had good service record and completed three years continuous service. Petitioner-appellant was appointed in 1986 and it is not pointed out by the learned counsel that Rules have further been amended, providing for regularisation giving a later cut off date.
9. In judgments and orders referred to by the learned counsel for the petitioner-appellant, the issue as to whether an employee who had been appointed de hors the rules can seek regularisation, has not been agitated nor decided. Therefore, the said judgments have no binding force.
10. It is settled proposition of law that an issue, which has not been considered by the Court while delivering a judgment, cannot be said to be binding as a "decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision" of the Court. (Vide H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India, AIR 1971 SC 530; Amar Nath Om Prakash and Ors. v. State of Punjab and Ors., AIR 1985 SC 218; Rajpur Ruda Meha v. State of Gujarat, AIR 1980 SC 1707; C.I.T. v. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363; and Sarva Shramik Sangh, Bombay v. Indian Hume Pipe Co. Ltd. and Anr. (1993) 2 SCC 386).
11. In Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr., AIR 2002 SC 834, the Hon'ble Apex Court held that courts should not place reliance on decisions without discussing as to how the factual situation fits-in with the fact situation of the decision relied upon.
12. In Jawahar Lal Sazawal and Ors. v. State of Jammu & Kashmir and Ors., AIR 2002 SC 1187, the Hon'ble Supreme Court held that a judgment may not be followed in a given case if it has some distinguishing features.
13. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd., AIR 2003 SC 511, the Hon'ble Supreme Court held that a decision is an authority for which it is decided and not what can logically be deduced therefrom. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. While deciding the said case the Court placed reliance upon its earlier judgment in Delhi Administration v. Manohar Lal, AIR 2002 SC 3088.
14. In Union of India v. Chajju Ram, AIR 2003 SC 2339, a constitution Bench of the Hon'ble Supreme Court held as under:-
"It is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a little difference in facts may lead to a different conclusion."
15. In Ashwani Kumar Singh v. U.P. Public Service Commission and Ors., AIR 2003 SC 2661, the Apex Court held that a judgment of the Court is not to be read as a statute as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. Substantial flexibility; one additional or different fact, may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper.
16. In view of the above, as the issue referred to above has not been agitated in those cases, the said judgments have no binding force on us.
17. The issue of regularisation has been considered by the Hon'ble Apex Court time and again and the law has been laid down in very clear terms in the cases, i.e. State of Haryana and Ors. v. Piara Singh and Ors., AIR 1992 SC 2130; Jacob M. Puthuparambil and Ors. v. Kerala Water Authority and Ors., (1991) 1 SCC 28; J & K. Public Service Commission etc. v. Dr. Narinder Mohan and Ors., AIR 1994 SC 1808; Dr. A.K. Jain v. Union of India, 1987 Supp SCC 497; Er. Ramakrishnan and Ors. v. State of Kerala and Ors., (1996) 10 SCC 565; and Ashwani Kumar and Ors. v. State of Bihar and Ors., AIR 1997 SC 1628; and the ratio of all those judgments can be summarized to the extent that the question as to whether the services of certain employees appointed on ad hoc basis should be regularised relates to the condition of service. The power to prescribe the conditions of service can be exercised either by snaking Rules under the proviso to Article 309 of the Constitution of India or any analogous provision and in the absence of such Rules, under the instructions issued in exercise of its executive power. The Court comes into the picture only to ensure observance of fundamental rights and statutory provisions, Rules and other instructions, if any, governing the conditions of service. The main concern of the Court, in such matters is to ensure the Rule of Law and to see that the executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the haplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the Directive Principles of the Constitution. It is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. A perusal of the authorities would show that appointments are as a rule to be made in accordance with statutory rules, giving equal opportunity to all the aspirants to apply for the posts and following the prevalent policy of reservation in favour of Scheduled Castes/Scheduled Tribes and other backward classes. Whenever the employees are appointed on ad hoc basis to meet an emergent situation, every effort should be made to replace them by the employees appointed on regular basis in accordance with the relevant rules as expeditiously as possible. Where the appointment on ad hoc basis has continued for long and the State, has made rules for regularisation, case for regularisation of employee has to be considered in accordance with the said rules. Where, however, no rules are operative, it is open to the employees to show that they have been dealt with arbitrarily and their weak position has been exploited by keeping them on ad hoc for long spell of time. However, it is a question of fact whether in the given situation, they were treated arbitrarily. In Khagesh Kumar v. Inspector General of Registration, U.P. and Ors., AIR 1996 SC 417, the Hon'ble Supreme Court did not issue direction for regularisation of those employees who had been appointed on ad hoc, basis or on daily wages after the cut off date, i.e., 1.10.1986 as was required by the provisions of U.P. regularisation of Ad hoc Appointment (On posts Outside the Purview of the Public Service Commission) Rules, 1979 and those who were not eligible under the said Rules were not given regularisation. The same view has been taken by the Supreme Court in Inspector General of Registration, U.P. and Anr. v. Avdesh Kumar and Ors., (1996) 9 SCC 217. Moreover, the above referred cases further laid down that for the purpose of regularisation, various pre-requisite conditions are to be fulfilled, i.e., the temporary/as hoc appointment of the employee should be in consonance with the statutory rules, it should not be a back-door entry. The service record of the petitioner should be satisfactory, the employee should be eligible and/or qualified for the post at the time of his initial appointment. There must be a sanctioned post against which the employee seeks regularisation and on the said sanctioned post, there must be a vacancy. Moreover, regularisation is to be made according to seniority of the temporary/ad hoc employees. The regularisation should not be in contravention of the State Policy regarding reservation in favour of Scheduled Castes/Scheduled tribes and other backward classes and other categories for which State has enacted any Act or framed rules or issued any Government Order etc.
18. Similar view has been taken in Union of India v. Bishamber Dutt, (1996) 11 SCC 341; and State of Uttar Pradesh v. U.P. Madhyamik Shiksha Parishad Sangh, AIR 1996 SC 708. In the case of State of Himachal Pradesh v. Ashwani Kumar, (1996) 1 SCC 773, the Apex Court held that if an employment is under a particular Scheme or the employee is being paid out of the funds of a Scheme, in case the Scheme comes to closure or the funds are not available, the Court has no right to issue direction to regularize the service of such an employee or to continue him on some other project, for the reason that "no vested right is created in a temporary employment."
19. In Prabhu Dayal Jat v. Alwar Sahkari Bhumi Vikas Bank, 1991 Lab. & IC 944, the Court considered the case of an employee, whose services stood terminated on the ground that he had been appointed without any authorization of law. This Court held that even in that case the provisions of the Act were attracted.
20. On the contrary, in Sita Ram Mali v. State of Rajasthan, (1994) 2 WLC 177, Rajasthan High Court held as under:
"Making appointment on daily wages without the availability of the post and without following the provisions of Articles 14 and 16 suffers from patent illegality. Apparently for the reasons which are only extraneous, the Officers of the Department have given appointments on daily wages to few favoured. Those who have waited in queue at the employment exchange have been altogether ignored. In fact, while the length of the queue continuously increase, the back-door entrants got the entry in service as daily wages employee and got the order of appointment on salary in the regular pay scale and ultimately the order of regularisation on the service."
21. The Courts consistently deprecated the practice of making appointments even on daily wages without advertising the vacancy. Even restricting the employment by calling the names from Employment Exchange only has been held to be violative of the provisions of Articles 14 and 16 of the Constitution as it offends the fundamental rights of other eligible persons whose names' were not registered in the Employment Exchange.
22. In Delhi Development Authority Horticulture Employees' Union v. Delhi Administration, AIR 1992 SC 789, the Apex Court held that employment on ad hoc basis by requisiting the names from Employment Exchange can curb the menace of nepotism and corruption.
23. In Union of India and Ors. v. N. Har Gopal and Ors., AIR 1987 SC 1227, the Hon'ble Supreme Court held that "employment in Government Departments should be through the medium of employment exchanges and it does not offend Articles 14 and 16 of the Constitution."
24. The two Judges Bench's judgment in N. Har Gopal (supra) was reconsidered by a Three Judges Bench in Excise Superintendent, Malkapatnam v. K.B.N. Visweshwara Rao, (1996) 6 SCC 216, and impliedly over-ruled the law laid down in N. Har Gopal. The Court observed as under:-
"It is common knowledge that many a candidate is unable to have the name sponsored though their names are either registered or are waiting to be registered in the employment exchange, with the result that choice of selection is restricted to only such of candidates whose names come to be sponsored by the employment exchanges. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange and employment exchange should sponsor the name of the candidate to the requisitioning department for selection strictly in accordance with the seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office's notice boards or announce on radio, television and employment news bulletin and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
25. The issue came up for consideration again before the Hon'ble Supreme Court in Arun Tiwari and Ors. v. Zila Mansavi Shikshak Sangh, AIR 1998 SC 331, wherein the Apex Court considered the employment restricting the requisition of names through employment exchanges in a case of short-term project. The Court approved the method of employment "looking to the requirement of time bound scheme." The Court held that in the special circumstances, requiring the speedier process of selection and appointment, applications through employment exchange may be permissible. In that case, the Hon'ble Supreme Court, after considering the exigencies of the situation, held that filling up vacancies for a short term scheme, requisitioning the names from employment exchange cannot be held to be unfair. Thus Arun Tiwari (Supra) is an exception to the general rule that every vacancy is to be filled up after due publicity thereof and holding selection assessing the inter se merit of the applicants.
26. Admittedly, there is nothing on record to show that the petitioner-appellant had been appointed by following the procedure prescribed under the Act or the Rules by the respondent-authorities nor the post had been advertised.
27. The question of appointment dehors the Rules has been considered by the Hon'ble Supreme Court time and again and the Court held that such appointments are unenforceable and inexecutable. It is settled legal proposition that any appointment made de hors the Rules violates the Public Policy- enshrined in the rules and, thus, being void, cannot be enforced. (Vide Smt. Ravinder Sharma and Anr. v. State of Punjab and Ors. AIR 1995 SC 277; Smt. Harpal Kaur Chahal v. Director, Punjab Instructions, 1995 (Supp) 4 SCC 706; State of Madhya Pradesh v. Shyama Pardhi, (1996) 7 SCC 118; State of Rajasthan v. Hitendra Kumar Bhatt, (1997) 6 SCC 574; Patna University v. Dr. Amita Tiwari, AIR 1997 SC 3456; Madhya Pradesh Electricity Board v. S.S. Modh and Ors., AIR 1997 SC 3464; Bhagwan Singh v. State of Punjab and Ors., AIR 1995 SC 277; and Chancellor v. Shankar Rao and Ors., (1999) 6 SCC 255).
28. In Dr. M.A. Haque and Ors. v. Union of India and Ors., (1993) 2 SCC 213, the Supreme Court observed as under:-
"........ We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and by passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commissions. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some governments and authorities have been increasingly resorted to irregular recruitments. The result had been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a matter of course."
29. Deprecating the practice of making appointment de hors the Rules by the State or its instrumentalities in Dr. Arundhati A. Pargaonkar v. State of Maharashtra, AIR 1995 SC 962, the Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service observing 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 regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to overreach the law. Requirement of rules of selection.... cannot be substituted by humane considerations. Law must take its course."
30. The Hon'ble Supreme Court in State of U.P. and Ors. v. U.P. State Law Officers Association and Ors., AIR 1994 SC 1654 observed as under:-
"This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. ........... The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoiled system. There need be no legal anxiety to save them."
31. In R.N. Nanjudappa v. T. Thimmiah, AIR 1972 SC 1767, the Hon'ble Apex Court held that regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of the Rules or it may have the effect of setting at naught the Rules.
32. In Delhi Development Horticulture Employee's Union (Supra), the Supreme Court held that ad hoc employees cannot seek regularisation on the ground that they had been working for a long period. In State of Orissa v. Sukanti Mohapatra and Ors., AIR 1993 SC 1650, the Apex Court held that services of the candidates appointed irregularly in total disregard of the rules cannot be regularised in exercise of such powers under the Departmental Rules.
33. In Dr. Surinder Singh Jamwal and Anr. v. The State of J & K, AIR 1996 SC 2775, the Hon'ble Apex Court held as under that the ad hoc appointments made de hors the rules without following proper procedure of recruitment, would not confer any right of regularisation merely on the basis of the length of the service." In P. Ravindran and Ors. v. Union Territory of Pondicherry and Ors., (1997) 1 SCC 350, the Hon'ble Apex Court held that regularisation of ad hoc appointees bypassing the process of recruitment through open competition to be held by the Public Service Commission, is not permissible. In Santosh Kumar Verma and Ors. v. State of Bihar and Ors., AIR 1997 SC 975, the Hon'ble Apex Court held that the posts temporarily filled in contravention of law, cannot be regularised. In State of Uttar Pradesh v. Ajai Kumar, (1997) 4 SCC 88, it has been held by the Hon'ble Apex Court that there must exist a post and there must be Statutory Rules or administrative instructions for appointment on the post. In Union of India v. Uma Maheshwari, (1997) 11 SCC 228, the Hon'ble Apex Court held that the claim of regularisation by a daily-wager is not sustainable if no regular work or regularisation scheme is in operation. In the present case also, no regularisation scheme has been framed by the State Government for regularising the services of a daily-wager against a post falling under the Centralised Services and moreover, the recommendation for creating additional posts by the G.D.A. has been rejected by the State Government. In State of U.P. v. Rajendra Prasad and Ors., (2004) 54 ALR 85, a Division Bench of this Court relying on various judgments of the Hon'ble Apex Court rejected the claim of regularisation of daily-wage employees of P.W.D. and Minor Irrigation Department holding that public posts are to be filled up after due advertisement. For seeking regularisation, there must exist a post and there should be Statutory Rules or administrative instructions, in absence of which, the claim of petitioner is unsustainable.
34. Law does not permit filling vacancies over and above the number of vacancies advertised as it would violate the fundamental rights of those persons who become eligible subsequent to the last date of filling up the application forms in pursuance of the advertisement.
35. Even if there are no Statutory Rules providing for the mode of appointment, the Executive Instructions/Policy decision must be there providing precisely for a mode of appointment. Even if no such Executive Instructions/Policy/Guidelines/Circular etc. is in existence, a fair procedure for appointment has to be adopted in consonance with the provisions of Articles 14 and 16 of the Constitution. (Vide Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare, AIR 1999 SC 3084).
36. In Ramesh Kumar Sharma and Anr. v. Rajasthan Civil Services and Ors., 2000 AIR SCW 4206, the Hon'ble Supreme Court held that "expression 'Service Rules' cannot be given a restrictive meaning in the absence of the definition of the said term and, therefore, it would include within its sweep, the necessary Government Order providing the method of recruitment."
37. A Constitution Bench of the Hon'ble Supreme Court, in B.R. Kapoor v. State of Tamil Nadu, (2001) 7 SCC 231 (Jayalalitha case) observed that it is the duty of the Court to examine whether the incumbent possesses qualification for appointment and the manner in which the appointment came to be made or the procedure adopted was fair, just and reasonable.
38. In Ashok Kumar Gupta v. State of U.P. and Ors., (1997) 5 SCC 201; and Indra Sawhney v. Union of India and Ors., (2000) 1 SCC 168, the Hon'ble Supreme Court held that Articles 14 and 16(1) are basic features of the Constitution. Thus, strict adherence to the said provisions is required.
39. In Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. and Ors., AIR 1991 SC 537; and A.P. Aggarwal v. Government (NCT) of Delhi and Ors., AIR 2000 SC 2055, the Hon'ble Supreme Court held that every State action, in order to survive, must not be susceptible to vice of arbitrariness which is a crux of Article 14 of the Constitution and basis of the Rule of Law. Therefore, any appointment made by a Authority, which is a State within the meaning of Article 12 of the Constitution, if found to have been made by a person without any competence or without following the procedure prescribed by law and in case the procedure is not prescribed and the procedure adopted by the Authority is not in consonance with Articles 14 and 16 of the Constitution, the incumbent cannot claim any benefit as in such a case the contract of service becomes unenforceable and in executable.
40. In Budhi Nath Chaudhary and Ors. v. Abahi Kumar and Ors., AIR 2001 SC 1176, the Hon'ble apex court has considered a case of regularisation of the employees, who had been selected through proper selection though they did not possess the requisite experience at the time of initial selection in view of the equitable considerations, it has been held that as they had been working for over a decade and had acquired the requisite experience, even if they were not having required experience at the time of their appointments they should not be removed only on this ground.
41. In Gujarat Agricultural University v. Rathod Labhu Bechar and Ors., AIR 2001 SC 706, the Hon'ble Supreme Court considered a case of daily rated workers working for a period of more than 10 years and issued directions to consider their cases for regularisation in phased programme as the number of such employees was more than 51,000 (fifty one thousand).
42. In V.M. Chandra v. Union of India and Ors., AIR 1999 SC 1624, the Hon'ble Supreme Court directed for absorption of casual labourers keeping in view long service rendered by them provided their services were found to be satisfactory.
43. In N.S. Giri v. The Corporation of City of Mangalore and Ors., AIR 1999 SC 1958, the Apex Court held that even the Award of the Labour Court in contravention of the conditions of service and statutory rules becomes illegal and unenforceable.
44. In State of Karnataka and Anr. v. B. Suvarna Malini and Anr., AIR 2001 SC 606, the Hon'ble Apex Court considered the validity of the provisions of Karnataka State Civil Services (Absorption of Persons working as Part Time Labourers in Karnataka Education Deptt. Of College Education) Special Rules, 1996 and held that Article 14 guarantees a similar treatment contra-distinguishable from identical treatment. The part-time teachers as such formed a separate class and therefore is not discriminatory to absorb the part-time teachers working for long time though they were not identical to the regularly appointed teachers for the reason that the legislature wanted to give relief to the part-time teachers only at one time. The Court held that the legislature as well as the executive Government while dealing with diverse problems arising out of an infinite variety of human relations must of necessity, have the power of making special laws, to attain any particular object and to achieve that object, it must have the power of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination.
45. What to talk of filling up the vacancy without, advertisement, even employer is not competent to make appointment over and above the number of vacancies advertised. (Vide Union of India and Ors. v. Ishwar Singh Khatri and Ors., 1992 Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat and Ors., 1994 Supp 2 SCC 591; State of Bihar and Ors. v. The Secretariat Assistant S.E. Union, 1986 and Ors., 1994 SC 736; Prem Singh and Ors. v. Haryana State Electricity Board and Ors., (1996) 4 SCC 319; Surinder Singh and Ors. v. State of Punjab and Anr., AIR 1998 SC 18; and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors. (1998) 3 SCC 45).
46. The reason for laying down such a law is that the State does not have the competence to fill up the future vacancies for the reason that it would violate the fundamental rights of those candidates who become eligible subsequent to the last date of the submission of the applications, in pursuance of which the select list is prepared. Even if the vacancies have not been calculated properly, a candidate cannot ask to re-determine and fill up the vacancies more than advertised.
47. It is settled legal proposition that invalidity of an appointment may arise not only for want of qualification as per required eligibility but also from the violation of such legal conditions or procedure for appointment as mandatorily required and as a result of which the appointment becomes void. (Vide Constitution Bench judgments in M. Pantiah and Ors. v. Muddala Veeramallappa and Ors., AIR 1961 SC 1107; University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491; and P.N. Lakhanpal v. A.N. Roy, AIR 1975 Del.66).
48. The appointment made without following the procedure violates the mandatory requirement of State Policy framed under Article 16 of the Constitution, which enables the Authority for providing reservation to candidates of Scheduled Castes, Scheduled Tribes and Other Backward Classes. State/Authorities are bound to adhere to the said Policy. As per the law, Roster System is to be provided and, thus, appointment made without following the procedure by the State Agency amounts to fraud upon the Constitution itself.
49. In M.P. Hasta Silpa Vikas Nigam Ltd. v. Devendra Kumar Jain and Ors., (1995) 1 SCC 638, the Supreme Court examined a case where a person had been given employment in undue haste without following the procedure in a company. The Court held that where the person had been appointed by an officer of a Government Company, fully financed by the State Government, in undue haste, his termination order should not have been interfered by the High Court, and thus, the High Court's order was found to be unsustainable.
50. A Constitution Bench of the Hon'ble Supreme Court, in Ajit Singh (II) v. State of Punjab and Ors., (1999) 7 SCC 209, observed as under:-
"Article 14 and Article 16(1) are closely connected. They deal with the individual rights of the persons. Article 14 demands that 'State shall not deny to any person equality before the law or the equal protection of law.' Article 16(1) issues a positive command that 'there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.' It has been held repeatedly by this Court that Clause (1) of Article 16 is a facet of Article 14 that it takes its roots from Article 14. The said Clause particularises the generality in Article 14 and identifies, in a Constitutional Sense 'equality of opportunity' in matter of employment and appointment to any office under the State..... The right to equal opportunity in the matter of promotion in the sense of right to be 'considered' for promotion is, in deed, a fundamental right guaranteed under Article 16(1) and this has never been doubted in any case before Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201 right from 1950."
51. Thus, the right of consideration for appointment/promotion is not merely a statutory right but is a fundamental right.
52. In Ramniklal N. Bhutta v. State of Maharashtra, AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-
"The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. ...... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-a-vis the private interest while exercising the power under Article 226.... indeed any of their discretionary powers."
53. In Upen Chandra Gogai v. State of Assam and Ors., (1998) 3 SCC 381, the Apex Court held that Court should not "validate an action which was not lawful at inception." Nor the Court can permit an appointment made by giving a go-bye to the required mode of recruitment. (Vide R.K. Trivedi and Ors. v. Union of India and Ors., (1998) 9 SCC 58; Sukhdeo Singh and Ors. v. Bhagatram Sardarsingh Raghuvanshi and Anr., AIR 1975 SC 1331; and Ambica Quarry Works etc. v. State of Gujarat and Ors., AIR 1987 SC 1073).
54. In Dr. Meera Massey v. Dr. S.R. Mehrotra and Ors., AIR 1998 SC 1153, the Apex Court observed as under:-
"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits wrong channel adopted.... If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only uplift many but bring back even a limping society to its normalcy."
55. The Supreme Court has taken the same view in Ram Chand and Ors. v. Union of India and Ors., (1994) 1 SCC 44, and held that "the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness." Similar view has been reiterated by the Apex Court in Virender S. Hooda v. State of Haryana and Ors., (1999) 3 SCC 696; and A.P. Agarwal v. Government of N.C.T. of Delhi, (2000) 1 SCC 600.
56. The Court should not set aside an order which revives an illegal and bad order. (Vide Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors., AIR 1966 SC 828; Maharaja Chintamani Saranath Shahdeo v. State of Bihar and Ors., (1999) 8 SCC 16; and Mallikarjuna Muddnagal Nagappa and Ors. v. State of Karnataka and Ors., (2000) 7 SCC 238).
57. The Courts are not under an obligation to interfere in such matters for the reason that Common Law doctrine of public policy can be enforced wherever an action affects or offends public interest or where harmful result of permitting the injury to the public at large is evident.
58. Admittedly, in the instant case, there is nothing on record to show that there exists any sanctioned post-which is lying vacant; petitioner possessed the qualification for the said post on the date of his appointment; he had been appointed following the procedure prescribed in statute/government orders; and the appointment was made observing the said policy of reservation etc. Thus, relief claimed by the petitioner cannot be granted.
59. Appeal is devoid of any merit and accordingly dismissed.