Vikas Dubey vs State of C.G.

Navin Sinha, Actg. C.J.

These two appeals arise from a common order dated 17-7-2014 disposing W.P. (S) No. 1595 of 2013 and W.P. (S) No. 1594 of 2013. They have thus been heard together and are being disposed by a common order. The learned Single Judge declined to interfere with the order dated 9-5-2013 canceling the regularisation of the appellants ordered on 3-2-2005 and 9-2-2005 respectively but restrained recovery of any difference of salary paid to the petitioners. Learned Senior Counsel for the appellant in W.A. No. 320 of 2014 submits that he was initially appointed on contract on 1-12-2001 as Assistant Grade-III. The appointment was extended at regular intervals till he was appointed as a Data Entry Operator against a vacant sanctioned post on 1-10-2004. Subsequently, he was regularised by order dated 9-2-2005 on the post of Data Entry Operator.

Likewise, in W.A. No. 321 of 2014 it was submitted on behalf of the appellant that he was appointed as a Data Entry Operator against an Assistant Grade III vacancy on contract by order dated 31-1-2002. It was also extended from time to time till regularisation on 3-2-2005.

Notice was given to them individually on 20-7-2005 to show cause why their regularisation be not cancelled as it was done contrary to law without following procedures. Both of them preferred separate writ petitions. Status quo was ordered in their favour. Ultimately, the writ petitions were disposed directing the State to consider their reply and till such time they were allowed to continue.

It was further submitted that they thus continued in service and the respondents passed no orders on their representation. On the contrary treating their date of regularisation as that of regular appointment, the Departmental Promotion Committee on 29-11-2011 promoted them to the post of Labour Inspector on 9-12-2001. The appointments having been made against vacancy sanctioned posts, they having continued in service for more than 10 years, the Court having granted them interim protection earlier, the subsequent promotion of the appellants amounts to waiving or condoning any alleged irregularity or illegality in the appointment. If the Court is not satisfied with regard to the validity of the appointments or the waiver by the respondents of any illegality or irregularity by reason of the subsequent promotion, the matter may be remanded to the Committee for fresh consideration in accordance with law.

Counsel for the State has opposed the application submitting that both the appellants were never appointed in accordance with law after open advertisement and competitive merit selection. The appointments were contractual in nature as Data Entry Operator against an Assistant Grade III post reflecting apparently illegality. The order of learned Single Judge requires no interference.

We have considered the submissions on behalf of the parties. The appellant in W.A. No. 320 of 2014 was appointed on 1-12-2001 on contract as a Data Entry Operator against vacant post of Assistant Grade III. It is, therefore, apparent that there was no sanctioned and vacant post of Data Entry Operator on the date of appointment. Even otherwise, it was a contractual appointment for one year only as mentioned in the order of appointment. In Writ Appeal No. 321 of 2014, the appellant was appointed likewise as a Data Entry Operator against a sanctioned Assistant Grade III posts on contract for one year. In both cases, their services were extended at regular intervals. In Delhi Development Horticulture Employees'' Union Vs. Delhi Administration, Delhi and others, , the Court took notice of the fact how such appointments are initially made for a very short duration extended at a regular intervals to create a foothold for entering into Government service staking a claim for regularisation on the basis of the same observing at Paragraph 23 as follows:--

"23. ......The Courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting....."

The status of the appellants is best epitomised from State of U.P. and others Vs. U.P. State Law Officers Association and others, , with regard to illegal appointments and their termination it was observed as follows:--

"19. ......the appointments may be made purely on personal or political considerations, and be arbitrary. 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. This is more so when the order of appointment itself stipulates that the appointment is terminable at any time without assigning any reason.....From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them."

The impermissibility for regularisation of a rank illegal appointment was observed far back in Ashwani Kumar and Others Vs. State of Bihar and Others, and has been reaffirmed at Paragraphs 31 and 32 in Secretary, State of Karnataka and Others Vs. Umadevi and Others, :--

"13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy, which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still-born baby. Under these circumstances, there was no occasion to regularise them or to give them valid confirmation. The so-called exercise of confirming these employees, therefore, remained a nullity.......It would amount to regularisation of back-door entries which were vitiated from the very inception.......Whether they are posts or vacancies they must be backed up by budgetary provisions so as to be included within the permissible infrastructure of the Scheme. Any posting which is de hors the budgetary grant and on a non-existing vacancy would be outside the sanctioned scheme and would remain totally unauthorised. No right would accrue to the incumbent of such an imaginary or shadow vacancy."

It is not the case of the appellants that their names were called from employment exchange alongwith others much less that they were appointed and after an open advertisement and competitive merit selection in compliance with Article 14 of the Constitution. Similar appointments were denied the claim for regularisation in National Fertilizers Ltd. and Others Vs. Somvir Singh, --

"13. The respondents herein were appointed only on applications made by them. Admittedly, no advertisement was issued in a newspaper nor was the employment exchange notified as regards existence of vacancies. It is now trite law that ''State'' within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the 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."

The fact that the appellants may have been regularised in 2005 contrary to the law may have come to their aid by virtue of the observations in Uma Devi (supra) that regularisation orders prior to it shall not be reopened but then even before the pronouncement in Uma Devi (supra), the respondents issued a show-cause notice and the appellants continued under the protection of interim order of this Court putting them in the exception as discussed in Paragraph 53 of the judgment excluding such persons from the benefit of consideration as a one time measure.

The judgment under appeal adequately notices that the appellants were served with show-cause notice on 18-5-2012 that despite earlier reminder they had not submitted their reply. Fresh reminders were issued on 22-6-2012. They filed their reply subsequently. Writ Petition Nos. 5005 of 2012 and 5006 of 2012, which are preferred by them were dismissed as withdrawn on 7-11-2012 reiterating the observation in the earlier writ petitions preferred by the appellants and disposed with directions.

The only question that remains for consideration now is that the effect of the promotions granted to them by the Departmental Promotion Committee in 2011. The issue need not detain us even for a moment. If the very entry into service was contrary to law, any mistake by the authorities in perpetuating that illegality by granting promotions on a foundation, which has no sanctity in the eyes of law automatically collapses with the foundation itself. The promotion cannot confer the camouflage of legality on what was a rank illegality in appointment.

We find no reason to interfere with the order under appeal. The writ appeal is allowed only to the extent indicated by the learned Single Judge.