Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Appointment De Hors Statutory Provisions On Non-available Post Cannot Be Taken Note Of For Regularisation And Such Regularisation Is Void.
JUDGEMENT TITLE : Hari Bansh Dwivedi Vs. Vice Chancellor Mahatma Gandhi Klashi Vidyapith & Others. On 19/08/2006 By Allahabad High Court
CASE NO : WRIT - A NO. 35149 OF 1999.
CORAM : Hon'ble R.K. Agrawal,J. And Hon'ble Sanjay Misra,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Civil Misc. Writ Petition No.35149 Of 1999
Dr. Hari Bansh Dwivedi V. The Vice Chancellor,
Mahatma Gandhi Kashi Vidyapith, Varanasi And Others


Hon'ble R.K.Agrawal, J.
Hon'ble Sanjay Misra, J.

(Delivered By R.K.Agrawal, J.)

By Means Of The Present Writ Petition Filed Under Article 226 Of The Constitution Of India, The Petitioner, Dr. Hari Bansh Dwivedi, Seeks The Following Reliefs:-
(a) Issue Writ, Order Or Direction Of The Nature Of Writ Of Certiorari Commanding Opposite Parties Nos.1 To 6 To Produce The Record Of The Case And To Quash The Appointment Order Dated 10.7.1999 (Annexure XVIII To The Writ Petition) And Letter Of Opposite Party No.6 Dated 6.10.1997 (Annexure II To The Writ Petition).
(b) Issue Writ, Order Or Direction Of The Nature Of Writ Of Mandamus Commanding The Opposite Parties 1 To 4 To Fill The Post Of Temporary Lecturer Of Karmkand Sanctioned By Letter Of State Government Dated 22.10.1996 As Per Advertisement Dated 9.2.1999 In Accordance With The Provisions Of Section 31 Of U.P.State Universities Act, 1973.
(c) Issue Any Other Appropriate Writ, Order Or Direction Which This Court May Deem Fit And Proper In The Facts And Circumstances Of The Case.
(d) Award Cost Of Writ Petition."

Briefly Stated, The Facts Giving Rise To The Present Petition Are As Follows:-
According To The Petitioner, He Was Appointed As A Temporary Lecturer In Dharmik Anushthan And Karmakand Vide Order Dated 12.9.1984 Issued By The Registrar Of The Mahatma Gandhi Kashi Vidyapith, Varanasi (hereinafter Referred To As "the University"). He Joined On The Said Post On 12.9.1984 Itself And Continuously Discharged The Duties And Function On The Said Post Till 31.7.1987 When A Decision Was Taken By The University To Close The Evening Classes. The Government Of Uttar Pradesh, Vide Letter Dated 22.10.1996, Sanctioned One Post Of A Temporary Lecturer In Karmakand In The Department Of Sanskrit In The University. On Coming To Know That A Temporary Post Of Lecturer In Karmakand Had Been Sanctioned, The Petitioner Made A Representation To The Vice Chancellor Of The University. However, Vide Another Letter Dated 6.10.1997, The State Government Directed The University To Regularise The Service Of Dr. Jai Prakash Pandey, Respondent No.6, On The Post Of The Temporary Lecturer. The Petitioner, On Coming To Know About The Letter Dated 6.10.1997 By Which The State Government Had Directed The University Itself To Regularise The Service Of The Respondent No.6, Approached This Court By Filing Civil Misc. Writ Petition No.30738 Of 1998, Seeking A Writ Of Certiorari For Quashing The Aforementioned Letter. He Also Sought The Relief For Regularisation Of His Services On The Post Sanctioned By The State Government Vide Letter Dated 22.10.1996 And, In The Alternative, To Fill The Said Post In Accordance With The Provisions Of Section 31 Of The U.P.State Universities Act, 1973 (hereinafter Referred To As "the Act"). The Petitioner Further Sought A Writ Of Mandamus Restraining The Respondents In The Said Writ Petition To Regularise The Services Of The Present Respondent No.6. In The Said Writ Petition, A Counter Affidavit Was Filed On Behalf Of The University In Which A Stand Was Taken That Neither The Petitioner Nor The Respondent No.6 Were Entitled For Regularisation Of Their Services. The Present Respondent No.6 Also Filed His Counter Affidavit In The Aforementioned Writ Petition In Which He Admitted That He Was A Permanent Assistant Teacher Of Sanskrit In Adarsh Sewa Sanskrit Mahavidyalaya, Ishwargangi, Varanasi. He Also Claimed To Have Been Appointed As Lecturer In Karmakand In The Evening Classes Run By The University. The Writ Petition Was Ultimately Dismissed By The Division Bench Of This Court Vide Judgment And Order Dated 19.2.1999. The Court Did Not Consider The Case Of The Petitioner To Quash The Letter Of The State Government Dated 6.10.1997 In View Of The Stand Taken By The University Authorities In Their Counter Affidavit. The Court Left The Question Open By Observing That If The University Acted In A Different Manner, Then It Will Be Open To The Petitioner To Approach This Court. Thereafter, The Respondent No.6 Filed Civil Misc. Writ Petition No.6811 Of 1999 In This Court Seeking A Writ Of Mandamus Directing The University Authorities To Forthwith Comply, Without Any Further Delay, The Order Of The State Government Dated 6.10.1997 And Consider His Absorption On The Post Of Lecturer In Karmakand. He Further Sought A Writ Of Mandamus Directing The State Government To Extend The Sanction Of The Post Of Lecturer In Karmakand In The University On Substantive And Permanent Basis. The Petitioner Filed An Application For Impleadment In Civil Misc. Writ Petition No.6811 Of 1999, In Which This Court, Vide Order Dated 23.2.1999, Was Pleased To Direct That The Petitioner Would Be Provided An Opportunity Of Hearing When The Aforementioned Writ Petition Is Heard. In The Meantime, The University Published An Advertisement On 9.2.1999 To Fill The Post Of Lecturer In Karmakand In Accordance With The Provisions Of Section 31 Of The Act, Whereupon The Respondent No.6 Filed Another Writ Petition Being Civil Misc. Writ Petition No.8147 Of 1999, Seeking The Quashing Of The Advertisement Dated 9.2.1999 And Some Other Reliefs. Both These Writ Petitions Have Been Got Dismissed By The Respondent No.6 As Not Pressed. According To The Petitioner, After The Respondent No.6 Filed The Aforesaid Two Writ Petitions, He Preferred An Application Seeking The Review Of The Judgment And Order Dated 19.2.1999 Passed By This Court In His Earlier Writ Petition No.30738 Of 1998, Which Application Is Still Pending. According To The Petitioner, One Dr. Suresh Chandra Who Was A Lecturer In The Sanskrit Department, Made A Representation To The Finance Officer Of The University To Provide Information As To Whether The Respondent No.6 Had Ever Been Paid Salary From The University On Which The Finance Officer Was Pleased To Inform That He Was Not Paid Any Amount After The Year 1990 And The Records Prior To The Year 1990 Were Not Available. It Is The Case Of The Petitioner That The Respondent No.6 Never Worked As Lecturer In The Evening Classes Or A Regular Class And, Therefore, No Account Number Was Ever Allotted To Him And His Name Did Not Find Place In The Salary Bill Of March, 1985. On The Other Hand, He Was A Permanent Teacher In Adarsh Sewa Sanskrit Mahavidyalaya, Ishwargangi, Varanasi Since 13.9.1982. He Was Never Appointed As Lecturer In The University And He Never Worked As Lecturer But Filed Forged And Manipulated Appointment Letter Purported To Have Been Issued By The Vice Chancellor Of The University. It Has Been Alleged By The Petitioner That According To The Own Admission Of The Respondent No.6, He Was A Teacher In Adarsh Sewa Sanskrit Mahavidyalaya, Ishwargangi, Varanasi And He Had Worked As A Lecturer In Dharmik Anushthan And Karmakand Vibhag In The Session 1985-86. Despite The Stand Of The University Authorities In The Counter Affidavit In Civil Misc. Writ Petition No.30738 Of 1998, The Executive Council Of The University In Its Meeting Held On 29.6.1999, Vide Its Decision On Item No.19, Authorised The Vice Chancellor Of The University To Take A Decision After Enquiry About The Regularisation/absorption Of The Services Of The Respondent No.6. The Registrar Of The University, Vide Letter Dated 10.7.1999, Had Issued The Appointment Letter To The Respondent No.6 On The Post Of Temporary Lecturer In Karmakand. The Petitioner Met The Registrar On 17.7.1999 And Requested Him To Provide A Copy Of The Order Of The Vice Chancellor, Which Was Declined On Account Of It Being Confidential. The Appointment Of The Respondent No.6 On The Post Of Temporary Lecturer In Karmakand In The University Is Under Challenge In The Present Writ Petition On The Ground That He Was Working As A Teacher In Adarsh Sewa Sanskrit Mahavidyalaya, Ishwargangi, Varanasi And Had Never Worked As A Lecturer In The University. He Was Not Paid Any Salary By The University And, Therefore, The Question Of His Regularisation, De Hors The Rules, Was Not Permissible. The Appointment Of The Respondent No.6, Made On The Basis Of The Letter Of The State Government Dated 6.10.1997, Is Wholly Illegal And Without Jurisdiction. The Provisions Of Section 31(1)(3)(b) Of The Act Are Also Not Applicable.
In The Counter Affidavit Filed By Ram Lal Prasad, Office Superintendent Of The University, It Has Been Stated That The Petitioner Was Appointed As A Lecturer On A Consolidated Pay Of Rs.500/- P.m. In Dharmik Anushthan And Karmakand With The Approval Of The Executive Council Pursuant To The Order Of The Vice Chancellor Dated 12.9.1984, Which Was Purely Temporary In Nature. At That Time, The Post Was Not Sanctioned. The Petitioner Continued To Serve As Such From 12.9.1984 To 31.5.1985 And 20.8.1985 To 30.6.1986. The Evening Classes Had Nothing To Do With The Petitioner And Dharmik Anushthan And Karmakand Is Not A Regular Department In The University. The Appointment Of The Respondent No.6 Had Been Made On The Basis Of The Resolution Passed By The Executive Council Authorising The Vice Chancellor To Take Necessary Action And, Therefore, The Vice Chancellor After Considering The Entire Matter, Vide Order Dated 10.7.1999, Had Regularised The Services Of The Respondent No.6. It Has Further Been Stated That The Petitioner Is Not Entitled To Regularisation Of His Services. The Respondent No.6 Was Appointed On 4.12.1984. The Petitioner's Locus Standi To Maintain The Writ Petition Has Also Been Questioned.
The Respondent No.6, Dr. Jai Prakash Pandey, Has Also Filed A Counter Affidavit In Which It Has Been Stated That He Was Appointed As Lecturer For Teaching Karmakand Vide Order Dated 4.12.1984 In The Evening Classes. Vide Averments Made In Paragraph 8 Of The Counter Affidavit, It Has Also Been Stated That Later On The Evening Classes Which Were Going On In The University, Were Discontinued And Consequently, His Services Were Also Discontinued. Further, Prior To The Abolition Of The Evening Classes, The Respondent No.6 Had Made A Representation Before The Vice Chancellor On 15.3.1985 Requesting That In Case A Permanent Post Of Lecturer In Karmakand Was Created By The State Government In The University, He Be Absorbed Keeping In View His Past Services. The Registrar, Vide Letter Dated 17.3.1985, Informed The Respondent No.6 That The Matter Pertaining To Payment Of His Salary Is Being Discussed With The State Government And Correspondence In That Regard Was Being Made And Pending Acceptance From The State Government, He Should Continue Teaching In The University. Thereafter, On 15.3.1996, The Respondent No.6 Made A Detailed Representation Before The Chancellor For His Continuance And Absorption On The Post Of Lecturer In Karmakand In The Department Of Sanskrit In The University. The Chancellor, Vide Order Dated 15.3.1996, Directed The Vice Chancellor To Apprise Him Regarding The Steps Taken For Regularisation Of His Services. The University Authorities, Vide Letter Dated 30.3.1996, Informed The Chancellor That The Respondent No.6 Could Not Be Absorbed In The University As Lecturer On Account Of The Fact That There Was No Sanctioned Post Of Lecturer In Karmakand. The Respondent No.6 Made A Representation Before The Vice Chancellor On Which The Vice Chancellor, Vide Order Dated 15.10.1996, Directed The Deputy Registrar To Take Suitable Action In Compliance Of The Order Of The Chancellor Dated 15.3.1996. The Vice Chancellor, Vide Letter Dated 17.4.1996, Requested The Secretary To The Chancellor To Get A Post Sanctioned By The State Government So That The Respondent No.6 Could Be Absorbed. It Was Followed By Another Letter Dated 13.5.1996. The State Government, Vide Order Dated 22.10.1997, Created A Post Of Lecturer In Karmakand In The University. A Representation Was Again Made By The Respondent No.6 Before The Chancellor On 16.12.1996, Which Was Forwarded To The Vice Chancellor Vide Letter Dated 10.1.1997 For Necessary Action. When No Action Was Taken, The Respondent No.6 Again Made A Representation Before The Chancellor On 23.4.1997on Which The Chancellor, Vide Order Dated 29.4.1997, Directed The Vice Chancellor To Take Suitable Action In The Matter. The University Thereafter Asked The Respondent No.6 To Submit Certain Documents Which Were Immediately Submitted On 6.6.1997. The State Government In The Meantime Called For A List Of Teachers Who Were To Be Absorbed By The University In Its Various Departments, Which Was Submitted By The University Authorities. The Name Of The Respondent No.6 Did Not Find Mention In The Said List Whereupon The State Government, Vide Letter Dated 24.7.1997, Had Asked The Vice Chancellor To Explain As To Why The Name Of The Respondent No.6 Had Not Been Mentioned In The Said List. The University Submitted Its Reply And Thereafter The State Government Passed An Order On 6.10.1997 Directing The Vice Chancellor To Regularise The Services Of The Respondent No.6 On The Newly Created Post In Karmakand. Pursuant To The Order Dated 6.10.1997 And After Fulfilling All The Formalities, The Service Of The Respondent No.6 Was Regularised. In Paragraph 31 Of The Counter Affidavit Filed By The Respondent No.6, It Has Been Stated That It Is Clear Beyond Doubt That It Is On Account Of The Efforts Made By The Respondent No.6 That The Post Of Lecturer In Karmakand Was Created And There Were Several Orders Passed In His Favour By The Chancellor And By The State Government For His Absorption On The Said Post. (underlined By Us). The Petitioner Was Fully Aware About All These Orders But He Did Not Chose To Challenge The Same Within The Time Prescribed And Has Approached This Court After Such A Long Time And, Therefore, Guilty Of Laches. The Respondent No.6 Is Fully Qualified And Entitled To Be Appointed On The Post Of Lecturer In Karmakand In The University. The Respondent No.6 Had Denied All The Allegations Made Against Him In The Writ Petition.
In The Rejoinder Affidavit Filed By The Petitioner To The Counter Affidavit Of Sri Ram Lal Prasad Representing The University Authorities, It Has Been Stated That The Petitioner Continued Till 31.7.1987. Initially He Was Paid A Consolidated Sum Of Rs.500/- P.m. But It Was Increased To Rs.750/-. From August, 1987, The Evening Classes Were Discontinued. The Petitioner Ought To Have Been Regularised In Place Of Dr. Jai Prakash Pandey Who Had Not Worked As Lecturer And, According To His Own Admission, He Had Worked Only In The Session 1985-86. The Appointment Of Dr. Jai Prakash Pandey Has Been Alleged To Be Irregular And Illegal And Also In Violation Of The Statutory Provisions.
A Supplementary Counter Affidavit Has Been Filed By Abhi Ram On Behalf Of The Respondent No.6 In Which It Has Been Stated That The Respondent No.6 Was Appointed As Lecturer On Part Time Basis In Karmakand, Vide Order Dated 4.12.1984. The Executive Council Of The University In Its Meeting Held On 31.5.1987 Decided To Discontinue The Evening Classes And Authorising The Vice Chancellor To Take Necessary Action In The Matter. The Vice Chancellor Retained Some Of The Teachers Who Were Working In The Evening Classes Till 30.6.1987 And Terminated The Services Of The Remaining Teachers From 31.7.1987. The Teachers Whose Services Were Terminated, Filed The Writ Petition Which Was Dismissed On Account Of Availability Of Alternative Remedy Before The Chancellor Under Section 68 Of The Act. The Chancellor Had Rejected The Representation. One Dr. S.N.Singh Whose Representation Was Rejected By The Chancellor, Approached This Court By Filing A Writ Petition Which Was Also Dismissed By This Court Whereupon He Filed A Special Leave Petition Before The Apex Court Which Was Disposed Of Vide Judgment And Order Dated 12.9.1990 With Certain Directions For Considering The Case Of Absorption/regularisation Under Section 31(1)(3)(b) Of The Act Alongwith Other Persons Who Were Similarly Situated. The Executive Council Of The University Constituted A Committee Headed By A Retired Judge Of This Court. The Report Submitted By The Committee Was Considered By The Executive Council And, Vide Resolution No.29, It Decided To Appoint Sri S.N.Singh On The Permanent Post. Similarly Situated Lecturers Also Made Representation For Regularisation Which Was Also Referred To The Said Committee And Its Report Was Also Accepted. The Teachers Who Were Left Out, Feeling Aggrieved Filed A Representation Before The Chancellor Claiming Regularisation, Which Was Rejected Vide Order Dated 31.8.1992. One Dr. R.P.Singh Preferred A Writ Petition Being Civil Misc. Writ Petition No.33467 Of 1992, Which Was Finally Allowed On 2.2.1994. In The Meantime, The University Constituted Another Committee Headed By A Retired Judge Of This Court Which Submitted Its Report And The University In Its Meeting Held On 20.4.1993 Decided To Regularise The Services Of Some Other Teachers. The Respondent No.6 Claims Parity With Those Teachers And Justifies His Regularisation. However, It Has Been Admitted That At That Point Of Time, His Services Could Not Be Regularised As There Was No Sanctioned Post In Karmakand And When The Post Was Created, His Services Have Rightly Been Regularised.
We Have Heard Sri Ashok Khare, Learned Senior Counsel On Behalf Of The Petitioner, The Learned Standing Counsel Who Represents The Respondent No.5 And Sri R.N.Singh, Learned Senior Counsel On Behalf Of The Respondent No.6.
Sri Ashok Khare, Learned Senior Counsel, Has Submitted That It Is Not In Dispute That The Petitioner Worked As A Part Time Lecturer In Dharmik Anushthan And Karmakand For Taking Evening Classes In The University From 12.9.1984 To 31.7.1987 On A Consolidated Salary Of Rs.500/- P.m. Which Was Later On Increased To Rs.750/- P.m. The Evening Classes Were Abolished By The University From 31.7.1987 Whereas The Respondent No.6, Even If It Is Taken To Be Correct, According To His Own Showing, Was Appointed To Teach Evening Classes In The University On 4.12.1984. At The Time Of His Appointment, According To Annexure 4 Of The Counter Affidavit Filed By The Respondent No.6, Which Is His Own Representation, It Is Admitted By Him That He Would Resign His Post In Adarsh Sewa Sanskrit Mahavidyalaya, Ishwargangi, Varanasi If In Future The State Government Gives Financial Aid To The University For Running The Course And The Post/aid, If Granted, Be Provided To Him On Priority Basis. The University Authorities, Vide Letter Dated 17.3.1985, Had Permitted The Respondent No.6 To Continue The Teaching In Adarsh Sewa Sanskrit Mahavidyalaya, Ishwargangi, Varanasi And To Draw The Salary From That Institution. He Further Submitted That From A Perusal Of The Representation Dated 15.3.1996 Made By The Respondent No.6 To The Chancellor, A Copy Of Which Has Been Filed As Annexure CA 6 To His Counter Affidavit, I.e., Respondent No.6, It Has Been Specifically Mentioned That He Was A Lecturer In Dharmik Anusthan And Karmakand Vibhag Of The University In The Academic Session 1985-86, Which Was Abolished In The Next Year As A Result Of Which He Became Unemployed. He Was Living Under The Hope That The Department Would Be Reopened And He Would Again Serve But Till Date The Said Department Has Not Been Opened. He Is Fully Eligible For The Post Of Lecturer In Sanskrit And, Therefore, He Be Adjusted In The Sanskrit Department Of The University. From The Own Admission Of The Respondent No.6, It Was Stressed That The Respondent No.6 Had Only Worked For One Year In The University, I.e., In The Year 1985-86. In The Year 1996, When He Made The Representation To The Chancellor, He Had Admitted That He Had Not Worked In The University After That Period. Thus, He Could Not Have Been Regularised On A Temporary Post Which Was Created By The State On 22.10.1996. The Appointment/absorption/regularisation Of The Respondent No.6 On The Temporary Post Of Lecturer In Karmakand In The University Is, Therefore, De Hors The Statutory Provisions And Is Violative Of Articles 14 And 16 Of The Constitution Of India. According To Him, This Court In The Judgment And Order Dated 19.2.1999 Passed In The Petitioner's Earlier Writ Petition No.30738 Of 1998 Had Only Held That The Petitioner Is Not Entitled For Regularisation Of His Services As He Went Out Of Services And Did Not Advance Any Claim For More Than 8 Years. However, This Court Had Accepted The Averments Made In The Counter Affidavit Filed By Sri Prabhash Dwivedi, The Assistant Registrar Of The University, Wherein It Was Stated That On The Post Of The Lecturer In Karmakand, A Newly Created Post By The U.P.Government, No Selection Either Of The Petitioner Or Dr. Jai Prakash Pandey Had Been Made. It Had Further Held That The Stand Of The University That It Has Not Given Effect To The Said Order, Cannot Be Overlooked Keeping In View The Stand Of The University That The Order Stood Ignored By Lapse Of Time And Had The University Insisted To Give Effect To The Order, Then Alone It Would Have Been Necessary To Determine Its Validity And For This Reason, This Court Did Not Consider It Necessary To Adjudicate Upon Its Validity And Left It Open To The Petitioner To Approach This Court In Case The University Acted In A Different Manner. He, Thus, Submitted That As The University Had Acted In A Different Manner, The Petitioner Is Well Within His Right To Approach This Court For Redressal Of His Grievance. According To Him, The Action Of The University Authorities In Appointing/absorbing/regularising Dr. Jai Prakash Pandey, Respondent No.6, On The Post Of Lecturer In Karmakand , Without Making Any Selection, Pursuant To The Advertisement Already Made, And Bereft The Statutory Rules, Is Wholly Illegal, Arbitrary And Is Liable To Be Set Aside.
Sri R.N.Singh, Learned Senior Counsel, Appearing For The Respondent No.6, However, Submitted That The Respondent No.6 Was Appointed As Lecturer For Taking Evening Classes On 4.12.1984. He Continued To Take The Classes Till It Was Abolished. As Teachers/part Time Lecturers Of Evening Classes Had Been Regularised Pursuant To The Report Submitted By The Committee Constituted In Terms Of The Directions Given By The Apex Court And This Court, The Services Of The Respondent No.6 Had Rightly Been Regularised. He Further Submitted That The Petitioner Had No Locus Standi To Challenge The Same As He Had Not Approached This Court Seeking His Regularisation Within A Reasonable Period And His Claim For Regularisation Had Already Been Negatived By This Court In Earlier Writ Petition No.30738 Of 1998, Decided On 19.2.1999. He Further Submitted That The Respondent No.6 Is Working Since 10.7.1999, I.e., For The Last More Than 7 Years And At This Stage It Would Be Appropriate And In The Interest Of Justice That His Appointment Is Not Set Aside.
He Has Further Submitted That The Order Of Appointment Dated 10.7.1999 Is A Valid Order Of Appointment And Unless It Is Declared A Void Order, Its Effect Cannot Be Taken Away. The Petitioner Cannot Be Said To Be A Person Aggrieved By The Said Order As It Does Not Affect Him At All. In Support Of His Various Pleas, He Has Relied Upon The Following Decisions:-
(i) Dakshaben B. Patel V. The Administrator, U.T. Of Daman & Diu And Others, JT 1995 (8) SC 554;
(ii) Chandra Singh V. State Of Rajasthan And Another, JT 2003 (6) SC 20;
(iii) P.K.Malik V. State Of U.P. And Others, 2005 (3) UPLBEC 2173 (F.B., Allahabad); And
(iv) Secretary, O.N.G.C. V. V.U.Warrier, JT 2005 (4) SC 489.

In Reply, Sri Ashok Khare Submitted That The Respondent No.6 Cannot Claim Parity With The Part Time Teachers/Lecturers Who Had Been Granted Regularisation In Terms Of The Report Of The Committee Constituted Pursuant To The Directions Given By The Apex Court And This Court Inasmuch As The Post On Which The Respondent No.6 Had Been Absorbed, Was Not In Existence At That Point Of Time. On The Other Hand, It Was Created Only In The Year 1996 When The Respondent No.6 Had Worked For One Year During The Academic Session 1985-86, I.e., More Than 12 Years Back.
Having Given Our Anxious Consideration To The Various Pleas Raised By The Learned Counsel For The Parties, We Find That It Is Not In Dispute That The Petitioner Had Worked As Part Time Lecturer To Take Evening Classes From 12.4.1984 To 31.7.1987 Whereas The Respondent No.6 Had Worked From 4.12.1984 To 31.3.1986. The Services Of Both, The Petitioner As Also The Respondent No.6, Stood Terminated On The Date Mentioned Above. Thereafter They Had Not Worked In The University.
The Claim Of The Petitioner Seeking Regularisation Of His Services Had Already Been Negatived By This Court In His Earlier Writ Petition No.30738 Of 1998 Vide Judgment And Order Dated 19.2.1999. However, This Court Did Not Adjudicate The Question Of Absorption/regularisation Of The Services Of The Respondent No.6 At That Time On The Stand Taken By The University Authorities In Their Counter Affidavit That No Action Pursuant To The Order Of The State Government Dated 6.10.1997 Was Being Taken. Thus, The Petitioner Is Well Within His Right To Approach This Court For Challenging The Appointment/absorption/regularisation Of The Respondent No.6 On The Post Of Lecturer In Karmakand In The University.
We Also Find That This Court In Its Judgment Dated 19.2.1999 Had Observed That "we See No Reason To Believe That If And When The University Considers That The Lecturer Is To Be Appointed And Classes Are To Be Started Then It Will Appoint Lecturers After Advertising The Post." The Post In Question Was Duly Advertised On 9.2.1999 By The University. However, On The Basis Of The Direction Given By The Chancellor And The State Government Instead Of Filling The Said Post By Open Selection, The University Had Proceeded To Appoint The Respondent No.6 On The Said Post.
From A Perusal Of The Representation Dated 15.3.1996 (Annexure 6 To The Counter Affidavit), The Own Document Filed Alongwith The Counter Affidavit Affirmed By The Respondent No.6, We Find That The Respondent No.6 Had Admitted In His Representation That He Had Worked In The University For The Session 1985-86 And Thereafter He Had Been Left Jobless And He Had Requested For Being Appointed As Lecturer In The University, Which Clearly Shows That After 1985-86, The Respondent No.6 Had Not Worked In The University Any More. (underlined By Us). Reliance Placed By Sri Singh On The Order Dated 12.9.1990 Passed By The Apex Court In The Special Leave Petition Of Dr. S.N.Singh For Justifying His Regularisation, Is Wholly Misplaced. The Order Dated 12.9.1999 Passed By The Apex Court Directs The University To Consider The Case Of Sri S.N.Singh For Regularisation Under Section 31(1)(3)(b) Of The Act Alongwith Other Persons Similarly Situated On One Vacant Post Of The Lecturer In Hindi. The Report Of The Committee Headed By The Hon'ble Mr. Justice A.N.Verma, As He Then Was, Had Considered The Case Of Regularisation Of Dr. S.N.Singh Alongwith Other Lecturers/teachers For The Post Of Lecturer In Hindi Only. The Other Report Dated 18.12.1991 Of The Same Committee Had Considered The Claim Of The Regularisation Of Teachers Appointed For The Evening Classes In Other Department On Parity With That Of Dr. S.N.Singh Pursuant To The Resolution Passed In The Meeting Of The Executive Council Held On 28/29.10.1991. At That Point Of Time, There Was No Question Of Considering The Regularisation Of Teachers Appointed For The Evening Classes In Karmakand As There Was No Sanctioned Post Of Lecturer In Karmakand.
Similarly, The Respondent No.6 Cannot Take Any Advantage Of The Regularisation Of The Services Of Dr. R.P.Singh In Psychology Department And Other Persons Pursuant To The Report Submitted By The Committee Headed By The Hon'ble Mr. Justice G.D.Dubey.
In All These Reports The Committee Had Recommended For Regularisation/absorption Of The Services Of The Teachers Teaching In The Evening Classes On The Existing Vacant Post Of The Lecturer In The University. It Is Not In Dispute That That The Temporary Post Of Lecturer In Karmakand Was Sanctioned On 22.10.1996. The Respondent No.6 Was Not In Service For A Pretty Long Period Of 12 Years And He Was Drawing Salary As A Teacher In Adarsh Sewa Sanskrit Mahavidyalaya, Ishwargangi, Varanasi. The University Having Advertised The Post On 9.2.1999 For Making The Appointment Of The Lecturer In Karmakand, Ought To Have Proceeded To Fill Up The Said Post On The Basis Of The Said Advertisement And Not By Making Appointment Through Back Door By Regularisation Of The Respondent No.6 De Hors The Rules And The Statutory Provisions.
The Appointment Of The Petitioner And The Respondent No.6 In The Evening Classes Was An Appointment On Contractual Basis And It Came To An End With The Abolition Of The Evening Classes In The University. It Is A Settled Law That An Appointee On A Contractual Basis, Is Not Entitled To Claim Regularisation. The Apex Court In The Case Of National Fertilizers Ltd. And Others V. Somvir Singh, 2006(5) SCC 493, Where The Respondent Was Appointed On Contractual Basis, Had Held That The Respondent Who Obtained The Employment On Contractual Basis, Cannot Claim Regularisation In Service.
As Laid Down By A Constitution Bench Of The Apex Court In The Case Of Secretary, State Of Karnataka V. Umadevi, (2006) 4 SCC 1, In Paragraph 3 Of The Report, It Is Clear That A Regular Process Of Recruitment Or Appointment Has To Be Resorted To, When Regular Vacancies In Posts, At A Particular Point Of Time, Are To Be Filled Up And The Filling Up Of Those Vacancies Cannot Be Done In A Haphazard Manner Or Based On Patronage Or Other Considerations. Regular Appointment Must Be The Rule. The Apex Court Has Further Laid Down, In Paragraph 6 Of The Report, That Normally Statutory Rules Are Framed Under The Authority Of Law Governing Employment. It Is Recognized That No Government Order, Notification Or Circular Can Be Substituted For The Statutory Rules Framed Under The Authority Of Law. This Is Because, Following Any Other Course Could Be Disastrous Inasmuch As It Will Deprive The Security Of Tenure And The Right Of Equality Conferred On Civil Servants Under The Constitutional Scheme. It May Even Amount To Negating The Accepted Service Jurisprudence. Therefore, When Statutory Rules Are Framed Under Article 309 Of The Constitution Which Are Exhaustive, The Only Fair Means To Adopt Is To Make Appointments Based On The Rules So Framed. The Apex Court Also Laid Down The Following Proposition In Paragraph 11 Of The Report :-
"11. In Addition To The Equality Clause Represented By Article 14 Of The Constitution, Article 16 Has Specifically Provided For Equality Of Opportunity In Matters Of Public Employment. Buttressing These Fundamental Rights, Article 309 Provides That Subject To The Provisions Of The Constitution, Acts Of The Legislature May Regulate The Recruitment And Conditions Of Service Of Persons Appointed To Public Services And Posts In Connection With The Affairs Of The Union Or Of A State. In View Of The Interpretation Placed On Article 12 Of The Constitution By This Court, Obviously, These Principles Also Govern The Instrumentalities That Come Within The Purview Of Article 12 Of The Constitution. With A View To Make The Procedure For Selection Fair, The Constitution By Article 315 Has Also Created A Public Service Commission For The Union And Public Service Commissions For The States. Article 320 Deals With The Functions Of Public Service Commissions And Mandates Consultation With The Commission On All Matters Relating To Methods Of Recruitment To Civil Services And For Civil Posts And Other Related Matters. As A Part Of The Affirmative Action Recognized By Article 16 Of The Constitution, Article 335 Provides For Special Consideration In The Matter Of Claims Of The Members Of The Scheduled Castes And Scheduled Tribes For Employment. The States Have Made Acts, Rules Or Regulations For Implementing The Above Constitutional Guarantees And Any Recruitment To The Service In The State Or In The Union Is Governed By Such Acts, Rules And Regulations. The Constitution Does Not Envisage Any Employment Outside This Constitutional Scheme And Without Following The Requirements Set Down Therein"

The Apex Court Has Further Held, In Paragraph 17 Of The Report, As Follows:-
"17. We Have Already Indicated The Constitutional Scheme Of Public Employment In This Country, And The Executive, Or For That Matter The Court, In Appropriate Cases, Would Have Only The Right To Regularize An Appointment Made After Following The Due Procedure, Even Though A Non-fundamental Element Of That Process Or Procedure Has Not Been Followed. This Right Of The Executive And That Of The Court, Would Not Extend To The Executive Or The Court Being In A Position To Direct That An Appointment Made In Clear Violation Of The Constitutional Scheme, And The Statutory Rules Made In That Behalf, Can Be Treated As Permanent Or Can Be Directed To Be Treated As Permanent."

The Apex Court In Umadevi (supra) Has Further Laid Down, In Paragraph 37 Of The Report, That There Was No Power In The State Under Article 162 Of The Constitution Of India To Make Appointments And Even If There Was Any Such Power, No Appointment Could Be Made In Contravention Of Statutory Rules.
The Apex Court In Umadevi (supra) Has Laid Down The Following Proposition In Paragraph 26 Of The Report As Follows:-
"26. With Respect, Why Should The State Be Allowed To Depart From The Normal Rule And Indulge In Temporary Employment In Permanent Posts? This Court, In Our View, Is Bound To Insist On The State Making Regular And Proper Recruitments And Is Bound Not To Encourage Or Shut Its Eyes To The Persistent Transgression Of The Rules Of Regular Recruitment. The Direction To Make Permanent -- The Distinction Between Regularization And Making Permanent, Was Not Emphasized Here -- Can Only Encourage The State, The Model Employer, To Flout Its Own Rules And Would Confer Undue Benefits On A Few At The Cost Of Many Waiting To Compete."

The Apex Court In The Case Of Municipal Council, Sujanpur V. Surinder Kumar, (2006) 5 SCC 173, Dealing With The Contention Of The Appellant Municipal Council That The Appointment Of The Respondent Was Not Made In Accordance With The Rules Rather At The Behest Of The Member Of The Legislative Assembly, Has Held In Paragraphs 17and 20 As Under:-
"17. It Is Not Disputed That The Appointment Of The Respondent Was Not In A Sanctioned Post. Being A 'State' Within The Meaning Of Article 12 Of The Constitution Of India, The Appellant For The Purpose Of Recruiting Its Employees Was Bound To Follow The Recruitment Rules. Any Recruitment Made In Violation Of Such Rules As Also In Violation Of The Constitutional Scheme Enshrined Under Articles 14 And 16 Of The Constitution Of India Would Be Void In Law. [See M.V. Bijlani V. Union Of India & Ors., (2006) 4 SCALE 147, State Of Punjab V. Jagdip Singh & Ors., 1964 (4) SCR 964 And Secretary, State Of Karnataka V. Uma Devi, 2006 (4) SCALE 197].

20. In The Instant Case, The Respondent Was Appointed In Violation Of The Rules. He Was Appointed At The Instance Of A Member Of The Legislative Assembly Who Was A Minister At The Relevant Time. No Appointment Could Have Been Made At His Instance. No Authority Howsoever High May Be Cannot Direct Recruitment Of Persons Of His Choice."

Further, The Apex Court In The Case Of National Fertilizers Ltd. (supra) Has Held As Follows:-
"13. The Respondents Herein Were Appointed Only On Applications Made By Them. Admittedly, No Advertisement Was Issued In A Newspaper Nor The Employment Exchange Was Notified As Regard Existence Of Vacancies. It Is Now Trite Law That A 'State' Within The Meaning Of Article 12 Of The Constitution Of India Is Bound To Comply With The Constitutional Requirements As Adumbrated In Articles 14 And 16 Thereof. When Recruitment Rules Are Made, The Employer Would Be Bound To Comply With The Same. Any Appointment In Violation Of Such Rules Would Render Them As Nullities. It Is Also Well-settled That No Recruitment Should Be Permitted To Be Made Through Backdoor.

18. Regularisation, Furthermore, Is Not A Mode Of Appointment. If Appointment Is Made Without Following The Rules, The Same Being A Nullity The Question Of Confirmation Of An Employee Upon The Expiry Of The Purported Period Of Probation Would Not Arise. The Constitution Bench In Umadevi (supra) Made A Detailed Survey Of The Case Laws Operating In The Field.

22. Taking Note Of Some Recent Decisions Of This Court, It Was Held That The State Does Not Enjoy A Power To Make Appointments In Terms Of Article 162 Of The Constitution Of India. It Further Quoted With Approval A Decision Of This Court In Union Public Service Commission V. Girish Jayanti Lal Vaghela & Others [2006 (2) SCALE 115] In The Following Terms:

"The Appointment To Any Post Under The State Can Only Be Made After A Proper Advertisement Has Been Made Inviting Applications From Eligible Candidates And Holding Of Selection By A Body Of Experts Or A Specially Constituted Committee Whose Members Are Fair And Impartial Through A Written Examination Or Interview Or Some Other Rational Criteria For Judging The Inter Se Merit Of Candidates Who Have Applied In Response To The Advertisement Made. A Regular Appointment To A Post Under The State Or Union Cannot Be Made Without Issuing Advertisement In The Prescribed Manner Which May In Some Cases Include Inviting Applications From The Employment Exchange Where Eligible Candidates Get Their Names Registered. Any Regular Appointment Made On A Post Under The State Or Union Without Issuing Advertisement Inviting Applications From Eligible Candidates And Without Holding A Proper Selection Where All Eligible Candidates Get A Fair Chance To Compete Would Violate The Guarantee Enshrined Under Article 16 Of The Constitution."

It Was Clearly Held In Umadevi's Case (supra) :

"These Binding Decisions Are Clear Imperatives That Adherence To Articles 14 And 16 Of The Constitution Is A Must In The Process Of Public Employment."

Article 14 Of The Constitution Of India Provides Equality Before Law. Article 16 Of The Constitution Of India Is A Facet Of Article 14. The Apex Court In The Case Of Union Public Service Commission V. Girish Jayanti Lal Vaghela And Others, (2006) 2 SCC 482, Has, In Paragraph 12 Of The Report, Laid Down The Following Proposition Of Law:-
"12. Article 16 Which Finds Place In Part III Of The Constitution Relating To Fundamental Rights Provides That There Shall Be Equality Of Opportunity For All Citizens In Matters Relating To Employment Or Appointment To Any Office Under The State. The Main Object Of Article 16 Is To Create A Constitutional Right To Equality Of Opportunity And Employment In Public Offices. The Words "employment" Or "appointment" Cover Not Merely The Initial Appointment But Also Other Attributes Of Service Like Promotion And Age Of Superannuation Etc. The Appointment To Any Post Under The State Can Only Be Made After A Proper Advertisement Has Been Made Inviting Applications From Eligible Candidates And Holding Of Selection By A Body Of Experts Or A Specially Constituted Committee Whose Members Are Fair And Impartial Through A Written Examination Or Interview Or Some Other Rational Criteria For Judging The Inter Se Merit Of Candidates Who Have Applied In Response To The Advertisement Made. A Regular Appointment To A Post Under The State Or Union Cannot Be Made Without Issuing Advertisement In The Prescribed Manner Which May In Some Cases Include Inviting Applications From The Employment Exchange Where Eligible Candidates Get Their Names Registered. Any Regular Appointment Made On A Post Under The State Or Union Without Issuing Advertisement Inviting Applications From Eligible Candidates And Without Holding A Proper Selection Where All Eligible Candidates Get A Fair Chance To Compete Would Violate The Guarantee Enshrined Under Article 16 Of The Constitution. (See B.S. Minhas Vs. Indian Statistical Institute And Others AIR 1984 SC 363)."

A Constitution Bench Of The Apex Court In The Case Of Umadevi (supra), After Referring To Articles 14 And 16 Of Constitution Of India And Considering The Celebrated Cases Of Kesavananda Bharati And Indra Sawhney, Has, In Paragraph 43 Of The Report, Observed As Follows:-
"43. Thus, It Is Clear That Adherence To The Rule Of Equality In Public Employment Is A Basic Feature Of Our Constitution And Since The Rule Of Law Is The Core Of Our Constitution, A Court Would Certainly Be Disabled From Passing An Order Upholding A Violation Of Article 14 Or In Ordering The Overlooking Of The Need To Comply With The Requirements Of Article 14 Read With Article 16 Of The Constitution. Therefore, Consistent With The Scheme For Public Employment, This Court While Laying Down The Law, Has Necessarily To Hold That Unless The Appointment Is In Terms Of The Relevant Rules And After A Proper Competition Among Qualified Persons, The Same Would Not Confer Any Right On The Appointee. If It Is A Contractual Appointment, The Appointment Comes To An End At The End Of The Contract, If It Were An Engagement Or Appointment On Daily Wages Or Casual Basis, The Same Would Come To An End When It Is Discontinued. Similarly, A Temporary Employee Could Not Claim To Be Made Permanent On The Expiry Of His Term Of Appointment. It Has Also To Be Clarified That Merely Because A Temporary Employee Or A Casual Wage Worker Is Continued For A Time Beyond The Term Of His Appointment, He Would Not Be Entitled To Be Absorbed In Regular Service Or Made Permanent, Merely On The Strength Of Such Continuance, If The Original Appointment Was Not Made By Following A Due Process Of Selection As Envisaged By The Relevant Rules. It Is Not Open To The Court To Prevent Regular Recruitment At The Instance Of Temporary Employees Whose Period Of Employment Has Come To An End Or Of Ad Hoc Employees Who By The Very Nature Of Their Appointment, Do Not Acquire Any Right. High Courts Acting Under Article 226 Of The Constitution Of India, Should Not Ordinarily Issue Directions For Absorption, Regularization, Or Permanent Continuance Unless The Recruitment Itself Was Made Regularly And In Terms Of The Constitutional Scheme. Merely Because, An Employee Had Continued Under Cover Of An Order Of Court, Which We Have Described As 'litigious Employment' In The Earlier Part Of The Judgment, He Would Not Be Entitled To Any Right To Be Absorbed Or Made Permanent In The Service. In Fact, In Such Cases, The High Court May Not Be Justified In Issuing Interim Directions, Since, After All, If Ultimately The Employee Approaching It Is Found Entitled To Relief, It May Be Possible For It To Mould The Relief In Such A Manner That Ultimately No Prejudice Will Be Caused To Him, Whereas An Interim Direction To Continue His Employment Would Hold Up The Regular Procedure For Selection Or Impose On The State The Burden Of Paying An Employee Who Is Really Not Required. The Courts Must Be Careful In Ensuring That They Do Not Interfere Unduly With The Economic Arrangement Of Its Affairs By The State Or Its Instrumentalities Or Lend Themselves The Instruments To Facilitate The Bypassing Of The Constitutional And Statutory Mandates."

The Apex Court Again In The Case Of R.S.Garg V. State Of U.P. And Others, JT 2006 (7) SC 1, After Referring To The Case Of Umadevi (supra), In Paragraphs 38 To 40 Of The Report, Has Discussed The Ambit Of Articles 14, 15 And 16 Of The Constitution Of India As Follows:-
38. Equality Clauses Contained In Articles 14, 15 And 16 Of The Constitution Of India May In Certain Situations Have To Be Considered As The Basic Structure/features Of The Constitution Of India. We Do Not Mean To Say That All Violations Of Article 14 Or 16 Would Be Violative Of The Basic Features Of The Constitution Of India As Adumbrated In Kesvananda Bharati Vs. State Of Kerala [(1973) 4 SCC 225 : 1973 Supp. SCR 1]. But, It Is Trite That While A Law Is Patently Arbitrary, Such Infringement Of The Equality Clause Contained In Article 14 Or Article 16 May Be Held To Be Violative Of The Basic Structure Of The Constitution. {See Waman Rao Vs. Union Of India [(1981) 2 SCC 362], Maharao Saheb Shri Bhim Singhji, Etc. Vs. Union Of India & Ors. [AIR 1981 SC 234] And Minerva Mills Ltd. & Ors. Vs. Union Of India & Ors [(1980) 3 SCC 625].} A Statute Professing Division Amongst Citizens, Subject To Articles 15 And 16 Of The Constitution Of India Must Pass The Test Of Strict Scrutiny. Article 15(4) And Article 16(4) Profess To Bring The Socially And Educationally Backward People To The Forefront. Only For The Purpose Of Invoking Equality Clause, The Makers Of The Constitution Thought Of Protective Discrimination And Affirmative Action. Such Recourse To Protective Discrimination And Affirmative Action Had Been Thought Of To Do Away With Social Disparities. So Long As Social Disparities Among Groups Of People Are Patent And One Class Of Citizens In Spite Of Best Efforts Cannot Effectively Avail Equality Of Opportunity Due To Social And Economic Handicaps, The Policy Of Affirmative Action Must Receive The Approval Of The Constitutional Courts. For The Said Purpose, However, The Qualifications Laid Down In The Constitution For The Aforementioned Purpose Must Be Held To Be The Sine Qua Non. Thus, Affirmative Action In Essence And Spirit Involves Classification Of People As Backward Class Of Citizens And Those Who Are Not Backward Class Of Citizens. A Group Of Persons Although Are Not As Such Backward Or By Passage Of Time Ceased To Be So Would Come Within The Purview Of The Creamy Layer Doctrine Evolved By This Court. The Court By Evolving Said Doctrine Intended To Lay A Law That In Terms Of Our Constitutional Scheme No Group Of Persons Should Be Held To Be More Equal Than The Other Group. In Relation To The Minorities, A 11-Judge Bench Of This Court In T.M.A. Pai Foundation Vs. State Of Karnataka [(2002) 8 SCC 481] Categorically Held That Protection Is Required To Be Given To The Minority So As To Apply The Equality Clauses To Them Vis-`-vis The Majority. In Islamic Academy Of Education Vs. State Of Karnataka [(2003) 6 SCC 697], It Was Opined That The Minority Have More Rights Than The Majority. To The Said Extent Islamic Academy Of Education (supra) Was Overruled By A 7-Judge Bench Of This Court In P.A. Inamdar Vs. State Of Maharashtra [(2005) 6 SCC 537].

39. An Executive Action Or A Legislative Act Should Also Be Commensurate With The Dicta Laid Down By This Court In Indra Sawhney Vs. Union Of India [1992 Supp.2 SCR 454] (`Indra Sawhney-I') And Followed In Ashoka Kumar Thakur Vs. State Of Bihar & Ors. [(1995) 5 SCC 403] And Indra Sawhney Vs. Union Of India [1999 Supp.5 SCR 229] ('Indra Sawhney-II').

40. In Umadevi (Supra), The Constitution Bench Referring To Kesavananda Bharati (supra), Indra Sawhney-I (supra) And Indra Sawhney-II (supra), Opined:
"These Binding Decisions Are Clear Imperatives That Adherence To Articles 14 And 16 Of The Constitution Is A Must In The Process Of Public Employment."

In The Case Of Dakshaben B. Patel (supra), The Appellant Had Obtained The Requisite Degree Within The Time Extended By The Tribunal. Under These Circumstances, The Apex Court Directed The Respondents To Refer The Case Of The Appellant For Regularisation To The Union Public Service Commission, To Be Done In Accordance With The Rules. This Case Is Of No Help To The Respondent No.6.
In The Case Of Chandra Singh (supra) The Apex Court In Paragraph 42 Of The Report Has Held As Follows:-
"42. Issuance Of A Writ Of Certiorari Is A Discretionary Remedy. (See Champalal Binani V. CIT, West Bengal, AIR 1970 SC 645). The High Court And Consequently This Court While Exercising Its Extraordinary Jurisdiction Under Art. 226 Or 32 Of The Constitution Of India May Not Strike Down An Illegal Order Although It Would Be Lawful To Do So. In A Given Case, The High Court Or This Court May Refuse To Extend The Benefit Of A Discretionary Relief To The Applicant. Furthermore, This Court Exercised Its Discretionary Jurisdiction Under Art. 136 Of The Constitution Of India Which Need Not Be Exercised In A Case Where The Impugned Judgment Is Found To Be Erroneous If By Reason Thereof Substantial Justice Is Being Done. (See S.D.S. Shipping Pvt. Ltd. V. Jay Container Services Co. Pvt. Ltd. And Others (2003 (4) Supreme 44). Such A Relief Can Be Denied, Inter Alia, When It Would Be Opposed To Public Policy Or In A Case Where Quashing Of An Illegal Order Would Revive Another Illegal One. This Court Also In Exercise Of Its Jurisdiction Under Art. 142 Of The Constitution Of India Is Entitled To Pass Such Order Which Will Be Complete Justice To The Parties."

There Can Be No Doubt That This Court Would Not Issue A Writ Of Certiorari Merely To Strike Down An Illegal Order Which Would Result In Reviving Another Illegal Order But That Is Not The Case Here. The Issue Involved Herein Is As To Whether The Appointment Of The Respondent No.6 On The Post Of Temporary Lecturer In Karmakand In The University, Had Been Done In Accordance With The Statutory Provisions Or Not. Striking Down Such An Appointment Would Not Revive Any Other Illegal Appointment/order.
In The Case Of Secretary, O.N.G.C. (supra) The Apex Court In Paragraphs 20 And 21 Of The Report Has Held As Follows:-
"21. Similarly, In The Leading Case Of Sangram Singh V. Election Commissioner, Kotah And Another, (1955) 2 SCR 1, Dealing With The Ambit And Scope Of Powers Of High Courts Under Article 226 Of The Constitution, Bose, J., Stated-
"That, However, Is Not To Say That The Jurisdiction Will Be Exercised Whenever There Is An Error Of Law. The High Courts Do Not, And Should Not, Act As Courts Of Appeal Under Art 226. Their Powers Are Purely Discretionary And Though No Limits Can Be Placed Upon That Discretion It Must Be Exercised Along Recognized Lines And Not Arbitrarily; And One Of The Limitations Imposed By The Courts On Themselves Is That They Will Not Exercise Jurisdiction In This Class Of Cases Unless Substantial Injustice Has Ensued, Or Is Likely To Ensue. They Will Not Allow Themselves To Be Turned Into Courts Of Appeal Or Revision To Set Right Mere Errors Of Law Which Do Not Occasion Injustice In A Broad And General Sense, For, Though No Legislature Can Impose Limitations On These Constitutional Powers It Is A Sound Exercise Of Discretion To Bear In Mind The Policy Of The Legislature To Have Disputes About These Special Rights Decided As Speedily As May Be. Therefore, Writ Petitions Should Not Be Lightly Entertained In This Class Of Case.
(Emphasis Supplied)
22. The Above Principle Has Been Reiterated And Followed By This Court In Several Subsequent Cases."

The Aforesaid Decision Does Not Advance The Cause Of The Respondent No.6. It, In Unequivocal Terms, Laid Down That The Power Under Article 226 Of The Constitution Of India Can Be Exercised By The High Court To Reach Injustice Wherever It Is Found. In The Present Case, We Have Already Stated Hereinbefore That The Appointment Of The Respondent No.6 Have Been Made Without Following The Statutory Provisions. Thus, The High Court Can Exercise The Power Under Article 226 Of The Constitution Of India.
In The Case Of P.K.Malik (supra) The Full Bench Of This Court Has Held That It Is Possible In Law For The Employer To Treat The Apparent Unequals As Equals And Grant Them Identity Of Designation And Pay. If There Is Any Discrimination Then And In That Event, It Is For The Employee To Bring That Fact Before The Court. So Long As That Is Not Done, On The Basis Of Basic Power Of The Employer Who Passed The Orders For The Purposes Of Equalisation Of Different Types Of Grades Cannot Be Doubted Or Disputed. This Decision Is Also Of No Help To The Respondent No.6 As The Petitioner Have Brought The Issue Of His Illegal Appointment Before The Court.
So Far As The Submission Of Sri Singh That The Appointment Order Dated 10.7.1999 Is A Valid Order Of Appointment Is Concerned, Suffice It To Mention That The Said Order Is Under Challenge In The Present Writ Petition And The Court Has To Scrutinize The Same As To Whether It Had Been Passed After Following The Statutory Provisions Or Not.
The University Comes Within The Definition Of The "State" Within The Meaning Of Article 12 Of The Constitution Of India And It Cannot Be Permitted To Act Arbitrarily Or To Please A Particular Authority Or Person.
From The Facts Already Stated Hereinbefore, We Are Of The Considered Opinion That, Even According To The Own Showing Of The Respondent No.6, He Was Instrumental In Getting The Post Sanctioned And Getting The Direction From The Chancellor As Also From The State Government For Absorbing Him On The Said Post Which, In The Facts And Circumstances Of The Case, As Also In View Of The Statutory Provisions, As It Existed, And Especially In View Of The Fact That The University Is Governed By The Rule Of Law, Could Not Have Been Done Except In Accordance With The Statutory Provisions.
It Is A Settled Law That An Employee Acquires No Right If He Is Appointed By An Authority Acting Beyond Its Competence, Conferring Such Right, Though It Is Not Entitled To Do So And Hence Such An Order Is Void. A Constitution Bench Of The Apex Court In The Case Of State Of Punjab V. Jagdip Singh, AIR 1964 SC 521, Where The Financial Commissioner, Pepsu, Confirmed The Respondent Tehsildars Against Non-existent Posts And On Merger With The State Of Punjab, The Respondents Contended That They Could Not Be Denied That Status, Held That Where A Government Servant Had No Right To A Post Or To A Particular Status, Though An Authority Under The Government Acting Beyond Its Competence Had Purported To Give That Person A Status Which It Was Not Entitled To Give, The Person Would Not In Law Be Deemed To Have Been Validly Appointed To The Post Or Given The Particular Status. The Apex Court Further Held That The Order Of The Financial Commissioner Had No Legal Foundation Under The Punjab Tehsildari Rules (as Applied To The Former State Of Pepsu), There Being No Vacancies In Which The Confirmations Could Take Place. The Order Of The Financial Commissioner Dated October 23, 1956 Confirming The Respondents As Permanent Tehsildars Must, Therefore, Be Held To Be Wholly Void.
Yet In Another Case, The Apex Court In State Of U.P. V. Neeraj Awasthi And Others, (2006) 1 SCC 667, Has Held In Paragraph 78 Of The Report That The Appointment De Hors The Statutory Provisions Are Illegal And Without Jurisdiction And, Thus, Void And Of No Effect.
The Apex Court Again In The Case Of M.P.Housing Board And Another V. Manoj Srivastava, (2006) 2 SCC 702, Has, In Paragraphs 8, 10 And 15 Of The Reports, Held As Follows:-
"8. A Person With A View To Obtain The Status Of A 'permanent Employee' Must Be Appointed In Terms Of The Statutory Rules. It Is Not The Case Of The Respondent That He Was Appointed Against A Vacant Post Which Was Duly Sanctioned By The Statutory Authority Or His Appointment Was Made Upon Following The Statutory Law Operating In The Field.

10. It Is One Thing To Say That A Person Was Appointed On An Ad-hoc Basis Or As A Daily Wager But It Is Another Thing To Say That He Is Appointed In A Sanctioned Post Which Was Lying Vacant Upon Following The Due Procedure Freedom Prescribed Therefor.

15. A Daily Wager Does Not Hold A Post Unless He Is Appointed In Terms Of The Act And The Rules Framed Thereunder. He Does Not Derive Any Legal Right In Relation Thereto."

Following The Case Of Manoj Srivastava (supra), The Apex Court In The Case Of M.P.State Agro Industries Development Corporation Limited And Another V. S.C.Pandey, (2006) 2 SCC 716, Has Held That If An Appointment Is Made Contrary To The Provisions Of The Statute, The Same Would Be Void And Effect Thereof Would Be That No Legal Right Could Be Derived By The Employee By Reason Thereof.
From The Various Decisions Of The Apex Court, Referred To Above, It Emerges That A Body Which Falls Within The Ambit Of Article 12 Of The Constitution Of India, Like The University In The Present Case, Has To Adhere To Articles 14 And 16 Of The Constitution Of India In The Process Of Making Appointments. Further, The Appointments Have To Be Made Strictly In Accordance With The Statutory Provisions Applicable Therein And Any Instructions Issued By The State Government To Accommodate Or Appoint A Particular Person Bereft Of The Statutory Provisions, Is Of No Consequence And Cannot Be Given Effect To. If An Appointment Has Been Made By The Authority In Compliance To The Instructions Issued By The Government Without Following Or Complying With The Statutory Provisions, Then Such An Appointment Is Void. Further, No Regularisation Of An Appointment Made De Hors The Rules Or Made On Contractual Basis Can Be Made. Regularisation Of Appointment, If Any, Can Be Done Only In Accordance With The Statutory Provisions.
Applying The Aforesaid Principles To The Facts Of The Present Case, We Are Of The Considered Opinion That The Appointment Of The Respondent No.6, Vide Order Dated 10.7.1999, On The Temporary Post Of Lecturer In Karmakand In The University Is Wholly Illegal, Void And Contrary To The Statutory Provisions. It Is Also Arbitrary And Violative Of Articles 14 And 16 Of The Constitution Of India Which Guarantees Equal Protection Of Law And Equal Opportunity In Public Employment And Is, Therefore, Liable To Be Quashed.
So Far As The Contention Of Sri Singh That The Respondent No.6 Had Continued In Service Since July, 1999 And, Therefore, This Court Should Not Interfere With The Order Of His Appointment Is Concerned, The Contention Is Misconceived. After The Abolition Of The Evening Classes, The Respondent No.6 Was Not In The Employment Of The University. The Very Entry Of The Respondent No.6 In The University Was Against A Non-existent Vacancy And As Held By The Apex Court In The Case Of Umadevi (supra), In Paragraph 33 Of The Report, Appointment To Non-available Post Should Not Be Taken Note Of For Regularization. The Advertisement For The Post Of Lecturer In Karmakand Was Already Issued By The University On 9.2.1999. The Regularisation Of The Respondent No.6, Vide Order Dated 10.7.1999, Against The Post Already Advertised On 9.2.1999, De Hors The Statutory Provisions, Is, Therefore, An Exercise In Futility And Void And The Respondent No.6 Cannot Get Any Benefit Of The Void Order. The Apex Court In The Case Of Binod Kumar Gupta And Others V. Ram Ashray Mahoto And Others, AIR 2005 SC 2103, Where The Appointments Were Made Without Following The Procedure Prescribed By Law And The Appellants Were Continuing In Service For 15 Years, Has Held That The Court Cannot Be Called Upon To Sustain Such An Obvious Disregard Of The Law And Principles Of Conduct According To Which Every Judge And Any One Connected With The Judicial System Are Required To Function. If The Court Allows The Appellants To Continue In Service Merely Because They Have Been Working In The Posts For The Last 15 Years, It Would Be Guilty Of Condoning A Gross Irregularity In Their Initial Appointment.
In The Result, The Writ Petition Succeeds And Is Allowed With Costs And The Order Dated 10.7.1999 (Annexure 18 To The Writ Petition) Is Quashed.

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