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2003 DIGILAW 1910 (ALL)

WINNIE FARID v. STATE OF U P

2003-08-26

RAKESH TIWARI

body2003
RAKESH TIWARI, J. Heard Counsel for the parties and perused the record. 2. By this common judgment a bunch of cases pertaining to ad-hoc, Appointment are being disposed off as issue to be decided in the Writ Petition, centers round the question whether the writ petitioners who are appointed on ad-hoc Basis vests any right for regularization in services. 3. It appears from the averments made in the writ petitions that all the petitioners was appointed on ad- hoc basis initially for specified period and thereafter their services have been extended from time to time. The petitioners knew that there appointment was temporarily on ad-hoc, basis and for specified period and that they are not entitled for regularization as a matter of right. Their appointment was not been made after following the procedure prescribed for appointment and was not in accordance with the recruitment rules for posts outside the purview of the Public Service Commission. In some of the cases it is not in dispute that the petitioners were selected by a local selection Committee only for the purpose of ad-hoc appointments. Such selection does not vest any right of appointment. 4. The averments by the Counsel for the petitioner to the term of the appointment of the petitioners was extended from time to time, is adequate enough to quote that they have been appointed on regular basis, cannot be considered in as much as in extension given from time to time in violation of provisions of law, can vests any person with any legal right for regular appointment. They have to qualify in regular selection with other eligible candidates. The petitioner placed reliance on following passage in case of Jackob M. Puthuparambil v. Kerala Water Authority and Others, AIR 1990 SC 2228 : "if the Rule is so interpreted it seems clear to us that employees who have been working on the establishment since long, and who possess the requisite qualifications for the job as obtaining on the date of their employment must be allowed to continue on their jobs and their services should be regularized. It is unfair and unreasonable to remove people who have been rendering service since sometime as such removal has serious consequences. The family of the employee, which has settled down, and accommodated its needs to the emoluments received by the breadwinner, will face economic ruination if the job is suddenly taken away. It is unfair and unreasonable to remove people who have been rendering service since sometime as such removal has serious consequences. The family of the employee, which has settled down, and accommodated its needs to the emoluments received by the breadwinner, will face economic ruination if the job is suddenly taken away. Besides, the precious period of early life devoted in the service of the establishment will be wholly wasted and the incumbent may be rendered age barred for securing a job elsewhere. It is indeed unfair to use him, generate hope and a feeling of security in him, and attune his family to live within his earnings and then suddenly to throw him out of job. Such behaviour would be an affront to the concept of job security and would run counter to the constitutional philosophy, particularly the concept of right to work in Art. 41 of the Constitution. Therefore, if we interpret Rule 9 (a) (i) consistently with the spirit and philosophy of the Constitution, which it is permissible to do without doing violence to the said rule, it follows that employees who are serving on the establishment for long spells and have the requisite qualifications for the job should not be thrown out but their services should be regularized as far as possible. Since workers belonging to this batch have worked on their posts for reasonably long spells they are entitled to regularization in services. " 5. However, where an appointment made by the State is without competence or without following the procedure prescribed by law, the incumbent cannot claim any right. In such cases the contract of services is not enforceable in law. Any ad-hoc appointment may by the authority be regularized according to rules, provided that the incumbent has eligibility qualification of the posts. If the incumbent has continued for long, the vacancy should be fill up on permanent basis in accordance with law and the person working may also be considered in accordance with rules. The employer must fill up those posts by a permanent appointment in accordance with the Rules rather than allow such ad-hoc appointments continued for years together. 6. It is settled law that an employee appointed under a particular scheme has no enforceable right in a Court for regularization of his appointment. No vested right is created temporary appointment. 7. The employer must fill up those posts by a permanent appointment in accordance with the Rules rather than allow such ad-hoc appointments continued for years together. 6. It is settled law that an employee appointed under a particular scheme has no enforceable right in a Court for regularization of his appointment. No vested right is created temporary appointment. 7. The practice of making appointment without advertising the vacancies or calling the names from the Employment Exchange violates the fundamental right of the eligible person. 8. Ad-hoc appointment or on daily wages, without following the procedure also violates the Articles 14 and 16 of the Constitution as such appointment are made on extraneous consideration, which oust the meritorious and the eligible candidates. This amounts to back door entry and the Courts have deprecated such Practice. 9. In Dr. M. A. Haque and others v. Union of India and others, 1993 (II) SCC 213 , the Supreme Court observed: 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 disregards 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 regularization 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. 10. In Dr. Arundhati A. Pargaonkar v. State of Maharashtra, AIR 1995 SC 962 , it has been held that: Nor the claim of the appellant, that she having worked as Lecturer without breaks for 9 years on the date the advertisement was issue. She should be deemed to have been regularized appears to be well founded. Eligibility and continuous working for howsoeverlong period should not be permitted to over reach the law. Requirement of rules of selection cannot be substituted by humane consideration. Law must take its course. 11. She should be deemed to have been regularized appears to be well founded. Eligibility and continuous working for howsoeverlong period should not be permitted to over reach the law. Requirement of rules of selection cannot be substituted by humane consideration. Law must take its course. 11. The apex Court deprecated the practice of making the appointment beyond the rules and rejected the claim on several occasions. This question has also been considered in the following judgments viz. ; Smt. Ravindre Sharma and another v. State of Punjab and others, 1995 (1) SCC 138 , Smt. Harpal Kaur Chahal v. Director Punjab Instructions, 1995 (Suppl) 4 SCC 706; State of Madhya Pradesh v. Shyama Pardhi, 1996 (7) SCC 118 , State of Rajasthan v. Hitendra Kumar Bhatt, 1997 (2) LBESR 872 (SC): 1997 (6) SCC 574 etc. 12. In State of U. P. and others v. U. P. State Law Officers Association and others, AIR 1994 SC 1654 , it has been 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 spoils system. There need be no legal anxiety to save them. 13. In the instant case, undisputedly the petitioners were appointed on ad-hoc basis. Though they have no legal right to be regularized in service merely on the basis of their continuance in service. They are entitled to be considered against any substantive vacancy which may be available in accordance with U. P. regularization of ad-hoc, Appointments (on post outside the purview of the Public Service Commission) (3rd Amendment) Rules, 2001. 14. In view of these reasons stated above the writ petition fails and is dismissed. No. order as to costs. 15. They are entitled to be considered against any substantive vacancy which may be available in accordance with U. P. regularization of ad-hoc, Appointments (on post outside the purview of the Public Service Commission) (3rd Amendment) Rules, 2001. 14. In view of these reasons stated above the writ petition fails and is dismissed. No. order as to costs. 15. It is however, provided that the case of the petitioner be considered by the authorities in accordance with the U. P. Regularization of ad-hoc, Appointments Rules, 2001 within a period of 2 months and if they are not fit for appointment to the post to be fill up according to the recruitment rules by regular selection. Petition dismissed. .