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2012 DIGILAW 149 (HP)

Sharmila Devi Sharma v. Y. S . Parmar University

2012-04-03

DEEPAK GUPTA, V.K.AHUJA

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JUDGEMENT Deepak Gupta, J. 1. This appeal by the appellant is directed against the judgement of the learned Single Judge dated 14.5.2009 whereby he dismissed the petition filed by the appellant and held that her prayer that she be regularized/absorbed in regular service cannot be accepted. 2. Briefly stated the facts of the case are that the petitioner applied for the post of Assistant Librarian in the Dr. Y.S.Parmar University of Horticulture & Forestry, Nauni, District Solan (hereinafter referred to as the University) on 30.10.1996. She also made a representation to the then Chief Minister of the State on 18.11.1996 that she be employed as Library Assistant on daily wage basis in the University. The Chief Minister recommended the case of the petitioner and directed that she be employed on daily wage basis as requested. The Vice Chancellor was requested to take further action and he was also directed to inform the OSD-cum-Principal Secretary to the Chief Minister. Order in this behalf was issued on 20.12.1996. The case of the petitioner was accordingly processed and the petitioner was appointed/engaged only on the ground that her case has been recommended by the then Chief Minister. 3. As per the policy of the University persons who had completed eight years of service on daily wage basis were to be considered for regularization. However, no interview letter was issued to the petitioner since in the meantime an inquiry had been initiated with regard to the appointment of the petitioner. The petitioner claims that her appointment was made after getting sanction of the Vice Chancellor and that the initial appointment was as per the applicable rules and since the petitioner had completed eight years she should be regularized by the respondent-University. The stand of the respondent was that the petitioner had not faced any selection process and had been appointed only on the basis of the recommendation of the then Chief Minister and since she had entered the University through back door she could not be regularized. The learned Single Judge dismissed the petition hence this appeal by the original writ petitioner. 4. Shri V.D.Khidtta, learned counsel for the appellant, has strenuously urged before us that the initial appointment of the petitioner was in accordance with the rules since the rules permit the Vice Chancellor to appoint a person for six months. The learned Single Judge dismissed the petition hence this appeal by the original writ petitioner. 4. Shri V.D.Khidtta, learned counsel for the appellant, has strenuously urged before us that the initial appointment of the petitioner was in accordance with the rules since the rules permit the Vice Chancellor to appoint a person for six months. He submits that the initial appointment was extended and regularized by the competent authority of the Board and therefore at this stage it is not open to the University to urge that the initial appointment of the petitioner was illegal. He also contends that even if there was any irregularity in the appointment of the petitioner then also the petitioner should not be deprived of her right because there is no illegality in her appointment and at best it is a case of irregularity and not illegality. It is not disputed that the University had delegated full powers to make appointments in respect of all employees other than teachers and officers to the Vice Chancellor. According to Section 25(11) of the University Act the Vice Chancellor may temporarily appoint a person to any posts in the University for a period not exceeding six months. This Section reads as follows:- “The Vice Chancellor may appoint temporarily under intimation to the Board a suitable person for a period not exceeding six months in the vacancy of an officer, teacher or any other employee in the University.” 5. Relying upon this Section Shri V.D.Khidtta, learned counsel for the appellant, submits that the Vice Chancellor had the power to make the appointments and therefore, it cannot be said that the initial appointment was illegal. 6. As rightly pointed out by the learned Single Judge that public service is not government largesse to be distributed at the whims and fancies of the political functionaries. There is a system of making public appointments and these appointments must be made in accordance with the rules or statutes framed by the Government or bodies like the University. In this day and age when there is rampant unemployment, every citizen of this country has a right to be considered to be appointed to a post if he or she fulfills the necessary qualifications for the post. Authorities cannot appoint person at their own whims and fancy and then direct that they be regularized. 7. In this day and age when there is rampant unemployment, every citizen of this country has a right to be considered to be appointed to a post if he or she fulfills the necessary qualifications for the post. Authorities cannot appoint person at their own whims and fancy and then direct that they be regularized. 7. Reliance placed by Shri V.D.Khidtta, learned counsel for the appellant, on Section 25(11) is totally misplaced. This Section only gives the power to the Vice Chancellor to make appointment for a period of six months. This is the outer limit and the Vice Chancellor has no power to extend the period of service. Once six months expire, the Vice Chancellor has no right whatsoever to extend the service beyond six months. The statutory rules govern the grant of employment and as per the statutory rules of the University any post which is to be filled in not only must applications be invited through the employment exchange but the post must be advertised, application invited and thereafter selection should be made in accordance with the procedure prescribed under the rules and regulation. When the petitioner was initially appointed no such procedure was followed and the only reason for appointing her was that the Chief Minister had recommended her appointment and directed the University to appoint her. We fail to understand under which provision of the law the Chief Minister had done so. We live in a country governed by the rule of law and the Constitution is applicable to all. Therefore, we are of the considered opinion that the initial appointment of the petitioner which was made without following any selection process was totally illegal. The contention of Shri Khidtta, Advocate, that the appointment was not illegal but only irregular cannot be accepted. An irregularity is something which is curable. Supposing the Selection Committee was not properly constituted then it may be a case of irregularity but when no selection is done and appointment is made without following any rules then the appointment is totally illegal and not irregular. 8. Reliance has been placed by Shri Khidtta, Advocate, onthe judgement of the Apex Court passed in Secretary, State of Karnataka and others vs. UmaDevi (3) and others (2006) 4 SCC 1. Para 53 of the judgement reads as follows:- “One aspect needs to be clarified. 8. Reliance has been placed by Shri Khidtta, Advocate, onthe judgement of the Apex Court passed in Secretary, State of Karnataka and others vs. UmaDevi (3) and others (2006) 4 SCC 1. Para 53 of the judgement reads as follows:- “One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N.Nanjundappa and B.N.Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the Courts or of tribunals. The question or regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgement.” 9. As is apparent from Para 53 quoted above, the SupremeCourt has approved the observation in the earlier judgement delivered in R.N.Nanjundappa vs. T.Thimmiah, (1972) 1 SCC 409. In para 15 of Umadevi’s case the Apex Court held as follows:- “15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Vs. S.V. NARAYANAPPA [1967 (1) S.C.R. 128], this Court stated that it was a mis­conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:-Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization 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 rules or it may have the effect of setting at naught the rules.” 10. A bare reading of the quoted portion clearly shows that the Supreme Court approved the observation in R.N.Nanjundappa’s case that if the appointment is in infraction of the rules or in violation of the provisions of the Constitution illegality cannot be regularized. In this case no rule was followed and no opportunity was given to any other person. Therefore, there was infraction of the rules as well as Article 14 of the Constitution of India. 11. The Apex Court in Umadevi’s case also clearly held that adherence to the rule of equality in public employment is a basic feature of the Constitution and if a person is temporarily employed without following any mode of selection then he cannot claim to be made permanent on the expiry of his term of appointment. In para 43, 47 and 52 the Apex Court held 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. 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. xxx... xxxx... xxxx... 47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post. xxx. xxxx.... Xxxx... 52. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.” 12. In Union of India and another vs. Kartick ChandraMondal and another (2010) 2 SCC 422 the Apex Court also took a similar view. In Satya Prakash and others Vs. State of Bihar and others, (2010) 4 SCC 179, the Apex Court after discussing Umadevi’s case held that even though the appellants had undergone a selection process but since the merit list was not prepared the selection of the appellants being against the rules was illegal and not irregular. 13. Keeping in view the above discussion, we dismiss the appeal. It is, however, clarified that in case the post of Library Assistant is advertised then in accordance with the directions given in Umadevi’s case the appellant will be given relaxation in age and be permitted to appear in the interview alongwith other candidate. She would also be given due weightage for the experience gained by her. The appeal is disposed of in the aforesaid terms. No order as to costs.