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2012 DIGILAW 805 (GAU)

Bhabatosh Kumar Roy v. State of Assam

2012-06-28

B.K.SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. Both the writ petitions filed by the same petitioner are inter connected and accordingly they have been heard together and are being disposed of by this common judgment and order. The petitioner, a member of the Assam Health (B) Services, is aggrieved by regularisation of services of the private respondents their promotions the next higher ranks and assignment of higher seniority to them above the petitioner. While in WP(C) No. 3118/2006, the challenge is in respect of Annexure-Q1 order dated 30.7.2005, by which the services of the private respondents Numbering four, have been regularized from their initial dates of appointment as Demonstrator of the Regional Dental College, in the second writ petition i.e. WP(C) No. 1992/2006, the challenge is to the promotion granted in favour of the said respondents to the post of Assistant Professor and Professor. Further challenge made in the writ petition is also the gradation list dated 12.1.2006, by which the private respondents have been shown senior to the petitioner. 2. Shortly stated, the facts leading to filing of the instant writ petitions are that an advertisement bearing No. 3/1988 was published in 1988 by the Assam Public Service Commission (for short APSC) for the posts of Demonstrator and Resident Surgeon in the Regional Dental College, Guwahati. Pursuant to the selection conducted, the APSC recommended the selected candidates, which included the present petitioner and the respondents Nos. 3 to 6. After such selection, the respondents Nos. 3 and 5 were appointed as Demonstrator by order dated 5.9.1989. On the other hand, the respondents Nos. 4 and 6 were appointed as Resident Surgeon on 29.3.1990. Be it stated here that the posts of Demonstrator and Resident Surgeon are in the same cadre. As against such appointment of the respondents, the petitioner was appointed as Demonstrator on 21.3.1990. Be it also stated here that in the select list, while the merit position of the petitioner was at Sl. No. 5, it was 1, 3, 4 & 7 respectively in respect of the private respondents. 3. The selection of the private respondents and consequential appointment came to be challenged in a writ petition being Civil Rule No. 2349/1990, Dr. Manjula Das v. State of Assam & Ors., on the ground that the said respondents were not qualified to appear in the selection. 3. The selection of the private respondents and consequential appointment came to be challenged in a writ petition being Civil Rule No. 2349/1990, Dr. Manjula Das v. State of Assam & Ors., on the ground that the said respondents were not qualified to appear in the selection. The writ petition was allowed vide judgment and order dated 23.3.1992 holding that the respondents Nos. 3, 4, 5 & 6 did not have the requisite qualification and consequently could not have been selected. In this connection, the Court made the following observations : 9. For the reasons stated above we have no hesitation to hold that the selection of Respondents Nos. 5, 6, 7 and 8 on the basis of relative merit for appointment to the post of Resident Surgeon and demonstrator as recommended by the APSC by the impugned memo dated 29.3.89 is illegal, without jurisdiction and void and is liable to be quashed. 10. The selection of Respondent Nos. 5, 6 7 and 8 for the post of Resident Surgeon or Demonstrator as per select list recommended by the APSC by the impugned notification dated 29th March, 1989 having been found as void, their appointment to the post of Demonstrator/Resident Surgeon on the basis of the said selection has to be treated as irregular. 4. While allowing the writ petition holding that the selection of the private respondents was illegal and without jurisdiction, direction was issued to recast the select list. The direction contained in paragraph 13 of the judgment is quoted below :-- 13. In the result, the petition is allowed. The selection of Respondents Nos. 5, 6, 7 and 8 are recommended by the impugned letter dated 29th March, 1989 is set aside and quashed. The APSC is directed to re-caste the select list on the basis of relative merit of qualified candidates as reflected in the interview held by the APSC keeping in view the candidates belonging to Schedule Caste community is legally entitled to get preferential treatment in the matter of selection and to forward the said revised select list to the Govt. within a period of 2 months from the date of receipt of this order. 5. Two review applications being RA 15/92 and 195/92 came to be filed seeking review of the said judgment and order. within a period of 2 months from the date of receipt of this order. 5. Two review applications being RA 15/92 and 195/92 came to be filed seeking review of the said judgment and order. Both the review applications were disposed of by order dated 3.7,1992 without interfering with the said judgment and order passed in Civil Rule No. 2349/1990. However, it was provided that the Govt. may continue to keep the said respondents in service and regularize their appointments in accordance with law without any prejudice to the right of the petitioner involved in the said writ petition. 6. Against the aforesaid judgment and orders, the private respondents had preferred a Special Leave Petition before the Apex Court and it is submitted that the said SLP was also dismissed upholding the aforesaid judgment and order. In the mean time, during the pendency of the aforesaid proceeding, the respondent No. 3 Dr. Mitali Baruah was promoted to the post of Assistant Professor on 13.9.94. Inspite of the aforesaid judgment and order, her promotion was regularized by order dated 20.12.1997. 7. It is after the aforesaid development, the APSC submitted the re-casted select list to the department vide its letter dated 13.8.98 (Annexure-17 to the Counter affidavit), filed by the private respondents. In the recasted, select list, virtually the earlier select list was reproduced with the expression as against the names of the private respondents, the remark "Held to be disqualified by the Court". If the names of the private respondents are excluded from the select list, the position of the petitioner would be at Sl. No. 2 in the select list. Be it stated here that after the aforesaid judgment and order, the name of the petitioner involved in the said writ petition came to be included at Sl. No. 6 of the recasted select list. 8. Against the aforesaid recasted select list, the private respondents filed a writ petition being Civil Rule No. 4226/1998 and the same was disposed of vide judgment and order dated 7.9.1998 taking note of the earlier proceedings. In the said judgment, there was reference of another proceeding initiated by one Dr. Dilip Goswami, whose name appeared in the select list at Sl. No. 10. In the said writ petition, it was alleged that the aforesaid judgment and order of this Court to recast the select list was not complied with. In the said judgment, there was reference of another proceeding initiated by one Dr. Dilip Goswami, whose name appeared in the select list at Sl. No. 10. In the said writ petition, it was alleged that the aforesaid judgment and order of this Court to recast the select list was not complied with. The said writ petition was disposed of by judgment and order dated 3.4.1995, issuing direction to recast the select list and to provide same benefit as that of Dr. Manjula Das, who had filed the earlier writ petition. 9. Taking note of the plea of the private respondents that in the mean time Dr. Chandana Kalita (respondent No. 4) and Dr. Mitali Bora (respondent No. 3), had been promoted as Assistant Professor and thus there services would be deemed to be regularized by the authority, the Court held that the said submission was not acceptable in view of the fact that the Division Bench of this Court in its judgment and order dated 23.3.1992 passed in Civil Rule No. 2349/1990, clearly held that their initial appointments were without any validity of law. Taking note of the said judgment and order and the directions contained therein, this Court held that all subsequent promotions of the private respondents were not sustainable and bound to fall through. While dismissing the writ petition, the Court made a significant observation that hardship might be caused to the petitioners but hard facts cannot make bad law. 10. Against the aforesaid judgment and order, the private respondents filed a writ appeal being W.A. No. 315/1998 but the same was withdrawn on 09.10.2001 with the submission that the same be dismissed as withdrawn with liberty to the private respondents to approach the authorities on the administrative side for regularisation of their services in view of the observations made in the order dated 3.7.1992 in the aforementioned review applications. After withdrawal of the writ appeal in that manner, the Govt. of Assam in the Health and Family Welfare (B) Department passed the orders dated 8.5.2002 regularising the services of the private respondents from the initial dates of their appointment as Demonstrator/Resident Surgeon. 11. The said orders came to be challenged by the petitioner in WP (C) No. 3371/2002, in which there was an interim order not to give promotion to the post of Professor. 11. The said orders came to be challenged by the petitioner in WP (C) No. 3371/2002, in which there was an interim order not to give promotion to the post of Professor. In the said writ petition, the official respondents filed an affidavit making a statement that there was no proposal for making any promotion to the post of Professor in the particular Branch i.e. Orthodentics. The petitioner also filed WP(C) No. 987/2001 and WP(C) No. 2884/2003, for a direction not to give promotion to the private respondents and to re-cast the gradation list showing the petitioner senior to the said respondents. All the writ petitions were heard analogously and disposed of by judgment and order dated 21.6.2005. By the said common judgment and order, the aforesaid orders of regularisation dated 8.5.2002 regularising the services of the private respondents from their initial date of appointments were set aside and the same was left to be re-decided at the discretion of the State Govt. and the APSC. As regards the recommendation made in favour of Dr. Mitali Bora (respondent No. 3), referring to the stand of the Govt. in its affidavit that it did not intend to fill up the post of Professor in Orthodentics, the Court observed that no order would be called for in the writ petition. 12. Dealing with the further contention of the petitioner for recasting the gradation list, it was held that in view of the setting aside of the impugned orders of regularisation, the petitioner is to be considered to be senior as on the date of passing of the judgment to the respondent Nos. 3 to 6. It was further observed that such seniority would be liable to be redetermined, subject to any such decision, which might to be taken by the Govt. and the APSC in the matter of regularisation of services of the private respondents. 13. After the aforesaid judgment and order, the Govt. in the Health & FW(B) Department, promoted the respondent Nos. 3 and 5 to the post of professor and Assistant Professor respectively, which will go to show that the stand in the affidavit filed by the official respondents in the aforesaid proceeding that the Govt. did not intend to fill up the post, was a false statement. As noted above, in the common judgment and order, this Court taking note of the said stand of the Govt. did not intend to fill up the post, was a false statement. As noted above, in the common judgment and order, this Court taking note of the said stand of the Govt. held that no order would be called for in respect of the said grievance of the petitioner. 14. The Govt. in the Health and FW(B) Department also passed the Annexure-Q and Q-1 orders, both dated 30.7.2005 regularising the services of the private respondents from the initial dates of their appointment, which are 5.9.1989, 5.9.1989, 22.3.1990 and 24.3.1990. In the order of regularisation, the authority referred to the aforesaid common judgment and order dated 21.6.2005 and also the purported consultation made with the APSC towards regularisation of their services. 15. I have heard Mr. S.K. Goswami, learned counsel for the petitioner. I have also heard Mr. B. Gogoi, learned Standing Counsel, Health and Family Welfare Department as well as Mr. M.K. Choudhury, learned senior counsel assisted by Mr. M. Khataniar, learned counsel for the private respondents. I have also heard Mr. C. Baruah, learned Standing Counsel, APSC. 16. Mr. S.K. Goswami, learned counsel for the petitioner submits that in view of the finality arrived at in the matter by means of the aforesaid judgments and orders, the authority in the Health and FW(B) Department, could not have regularized the services of the private respondents in the manner and method in which the same has been done. He further submits that the authority also could not have promoted the private respondents to the post of Assistant Professor and Professor when their very initial appointments are illegal. Questioning the gradation list in which the petitioner is shown junior to the private respondents, he submits that when the very appointment of the private respondents to the service has been held to be illegal by this Court, the authority could not have assigned them higher seniority above the petitioner by successive orders of regularisation, which are per se illegal. 17. To buttress the above argument, he has placed reliance on the following decisions of the Apex Court :-- 1. (2006) 1 SCC 667 , State of U.P. v. Neeraj Awasthi; 2. (1972) 1 SCC 409 , rn Nangjun Dappars v. T. Limiah; 3. (2004) 7 SCC 112 , Uma Rani v. Registrar of Cooperative Societies; 4. (2007) 1 SCC 373 , Munidpal Corporation v. Ram Prakash Dubey; 5. (2006) 1 SCC 667 , State of U.P. v. Neeraj Awasthi; 2. (1972) 1 SCC 409 , rn Nangjun Dappars v. T. Limiah; 3. (2004) 7 SCC 112 , Uma Rani v. Registrar of Cooperative Societies; 4. (2007) 1 SCC 373 , Munidpal Corporation v. Ram Prakash Dubey; 5. (2006) 4 SCC 1 , Secretary State of Karnataka & Ors. v. Uma Devi; 6. (2001) 1 SCC 143 , Nazina Begum lascar v. State of Assam; 7. (2003) 3 SCC 374 , Ram Krishna Kamath v. State of Karnataka; 8. 2009 (3) GLT 692, Agnami & Ors v. State of Nagaland; 9. (2008) 5 SCC 241, Govt. of Andhra Pradesh v. K. Brahmanandam and Ors.; 10. (2010) 1 SCC 3435, Rupa Rani v. Jharkhand Gramin Bank; 11. (2010) 10 SCC 63 , Ms. Patil v. Gulbarga University; 12. (2007) 4 SCC 54 , Ashok Kumar v. UOI & Ors. 18. Mr. B. Gogoi, learned Standing Counsel, Health submits that whatever has been done in the matter towards passing the impugned orders, the same is only pursuant to the liberty granted by this Court in the aforementioned judgments. He further submits that having regard to the long length of service of the private respondents, the authority decided to regularize "their services. As regards the promotion granted to the private respondents to the post of Assistant Professor and Professor, he has submitted that the same was granted to the said two respondents considering their length of service and experience. As regards the gradation list, placing the private respondents above the petitioner, he submits that since the joining date of the petitioner was later in point of time than that of the private respondents, there is nothing wrong in showing the private respondents as senior to the petitioner. 19. Mr. M.K. Choudhury, learned senior counsel assisted by Mr. M. Khataniar, learned counsel for the private respondents argued that having regard to the long length of service rendered by the private respondents;, interference with the impugned orders at this stage will have serious repercussion in the service career of the private respondents. He submits that although the initial appointment of the private respondents had been declared to be illegal by this Court but subsequently in the review applications, this Court granted the liberty to the Govt. to deal with the cases of the private respondents appropriately. He submits that although the initial appointment of the private respondents had been declared to be illegal by this Court but subsequently in the review applications, this Court granted the liberty to the Govt. to deal with the cases of the private respondents appropriately. Referring to the liberty granted in the writ appeal to pursue remedy departmentally, he submits that the Govt. in consideration of all the relevant facts and circumstances and also in consultation with the APSC, having decided to regularize the services of the private respondents from their initial dates of appointment, this Court will be reluctant to interfere with the impugned orders, more particularly, the orders by which their services have been regularized. 20. In addition to the above arguments advanced by the learned counsel for the private respondents, a written argument has also been submitted, in which a plea has been advanced that the petitioner is not entitled to get any relief as he has approached this Court belatedly. It has also been contended that the very appointment of the petitioner pursuant to the selection of the APSC was illegal, inasmuch as, the post against which he was appointed was not one of the posts advertised. M. Choudhury, learned senior counsel has also placed reliance on the decision of the 'Apex Court reported in (2007) 7 SCC 455 , Sukhdeo Pandey v. Union of India & Ors. 21. I have carefully considered the submissions made by the learned counsel for the parties. I have also considered the entire materials on record including the two files produced by Mr. B. Gogoi, learned Standing Counsel, Health. The said two files are (i) File Nos. HLB 232/98 and (ii) HLB 232/98/Pt. 22. The fact that the initial appointment of the private respondents as Demonstrator / Resident Surgeon was illegal, has attained its finality. It was conclusively held by the Division Bench of this Court that the said respondents did not qualify to offer their candidature in terms of the advertisement and accordingly they could not have called for the selection. The findings recorded in the Division Bench judgment dated 23.3.1992 passed in Civil Rule No. 2349/1990, has been noted above. It was categorically held that the selection of the respondents Nos. 3, 4, 5 & 6 was illegal, without jurisdiction and void. The findings recorded in the Division Bench judgment dated 23.3.1992 passed in Civil Rule No. 2349/1990, has been noted above. It was categorically held that the selection of the respondents Nos. 3, 4, 5 & 6 was illegal, without jurisdiction and void. While setting aside the selection and appointment of the private respondents, direction was issued to recast the select list. However, the APSC in its wisdom again incorporated the names of the respondents in the recasted list with the remark against each one of them "Held to be disqualified by the Court. In fact, upon setting aside the selection of the said respondents, the APSC could not have included their names in the recasted select list. However, this aspect of the matter need not detain us, inasmuch as, against each one of their names the aforesaid remarks i.e. "Held to be disqualified by the Court" was indicated and consequently inclusion of their names in that manner was redundant. 23. In view of setting aside of the selection of the private respondents, they could not have remained in service. However, they continued in their services in view of the observations made in the review order dated 3.7.1992, by which it was provided that since the vacancies were there, their services might be continued. As regards the observation made in respect of regularisation of their services in accordance with law, the same cannot be understood to be a direction for regularisation of their services de hors the regular recruitment process to be initiated and conducted by the APSC. 24. The respondents have heavily placed reliance on the observation made in the aforesaid review order dated 3.7.1992 and the order dated 9.10.2001 passed in WA No. 315/1998. As to what is the observation in the review application, has been discussed above. So far as the writ appeal is concerned, it was filed against the recasting of the select list in the aforementioned manner and the same was withdrawn with the liberty to approach the authorities in the administrative side for regularisation. Suffice is to say that the liberty obtained did not clothe the private respondents with any right to get their services regularized de hors the regular recruitment process. Suffice is to say that the liberty obtained did not clothe the private respondents with any right to get their services regularized de hors the regular recruitment process. The said liberty also did not clothe the department to regularize their services unmindful of the aforesaid judgment and order passed by the Division Bench and also the judgment and order dated 7.9.1998 passed in Civil Rule No. 4226/1998, in which it was held that in view of the initial appointment being illegal, the promotions given to the private respondents were also illegal. As noted above, in the said judgment, this Court taking note of the submissions that hardship would be caused to the private respondents, observed that hard facts cannot make bad laws. 25. All the issues relating to regularisation of service of the private respondents with retrospective effect, their further promotions and the preparation of gradation list were finally determined by the aforesaid judgment and order dated 21.6.2005 passed in the three writ petitions filed by the petitioner. By the said judgment taking note of the aforesaid Division Bench judgment and the review order, the Court made the following significant observations :-- 3. However, nothing appears to have been done by the Government in this regard and instead the respondent No. 6 was promoted to the higher post of Assistant Professor, Orthodentics under Regulation 4 (d) on 13.9.1994 and the respondent No. 5 Dr. Chandana Kalita was promoted in a similar manner to the higher post of Assistant Professor in Dentistry on 26.9.1995. The aforesaid promotions were regularised on the recommendation of the Public Service Commission on 20.12.1997 ad 22.4.1998 respectively. The petitioner was also promoted to the post of Assistant Professor in Dentistry under Regulation 4 (d) on 7.4.1997 and the said promotion was regularized on 15.6.1998. 6. The facts recited above makes it abundantly clear that the orders dated 23.3.1992 and 3.7.1992 passed by this Court in CR 2349/1990, Review Application No. 15/1992 had attained finality in law. The directions contained in the aforesaid two orders, read together, have already been noted. The selection of the respondents Nos. 5 to 8 have been held to be illegal and their appointments in the post of Demonstrator have been held to be irregular. The further direction issued by the Court is for regularisation of the aforesaid irregular appointments in accordance with law. The selection of the respondents Nos. 5 to 8 have been held to be illegal and their appointments in the post of Demonstrator have been held to be irregular. The further direction issued by the Court is for regularisation of the aforesaid irregular appointments in accordance with law. As the orders passed by this Court in the above noted proceedings have attained finality in law, there could be no debate or discussion with regard to the fact that the said directions have to be complied with and it is the question of compliance of the said directions that is the next issue that this Court has to address itself. While doing so, this Court must also take note of the fact that by virtue of the earlier orders passed by this Court in the above noted two proceedings the selection of the respondents Nos. 5 to 8 have been set aside by this Court. 7. The materials available or. record do not indicate that after the selections of the respondents Nos. 5 to 8 had been set aside by the Court, may further or fresh proceedings for selection of the said respondents had been held by the Public Service Commission. The direction of the Court was to regularise the irregular appointments of the respondents in accordance with law. The Service Rules governing the posts in question have not been placed before the Court. However, the pleadings and the past events, as noted in the present order, makes it abundantly clear that the post of Demonstrator can be filled up only on the recommendation of the Public Service Commission, If that be so, it was obligatory and incumbent on the part of the State authority to make an immediate reference of the cases of the respondents to the Public Service Commission after the selection of the respondents was set aside by this Court. Admittedly, the same was not done. Eventually when the matter was sent to the Public Service Commission, the Public Service Commission also adopted a procedure which this Court finds to be curious. Instead of making any fresh selection, the Public Service Commission recast the list by recording an observation that the respondents Nos. 5 to 8 have been held to be disqualified by the Court. Eventually when the matter was sent to the Public Service Commission, the Public Service Commission also adopted a procedure which this Court finds to be curious. Instead of making any fresh selection, the Public Service Commission recast the list by recording an observation that the respondents Nos. 5 to 8 have been held to be disqualified by the Court. Be that as it may, what clearly transpires from the records available is that there was no fresh selection of the respondents No 5 to 8 at any point of time. In such circumstances, it was not open for the Government to regularise the irregular appointments of the said respondents without the recommendation of the Public Service Commission, which is what has been attempted to be done by the Government by passing the orders dated 8.5.2002. 8. The departmental Commissioner and Secretary while passing the orders dated 8.5.2002 regularising the services of the respondents Nos. 5 to 8 with effect from the date of initial appointment has taken note of the long period of service rendered by the respondents Nos. 5 to 8. Long period of service rendered in a post, without being validly appointed, cannot be a legitimate basis for regularisation. When recruitment to public service has to be made through a prescribed agency and in the present case the agency contemplated as a constitutional body i.e, the Public Service Commission, it was not open to the State Government to regularise the respondents Nos. 5 to 8 without the recommendations of the Public Service Commission. Authority for the above position is derived by this Court from a judgment of the Apex Court in the case of Dr. (Mrs.) Chanchal Goyal v. State of Rajasthan, reported in 2003(3) SCC 485 . In the aforesaid decision, though, in the context of termination of service of a person who had put 28 years of service without being appointed by following the procedure prescribed by law, it was held by the Apex Court that mere length of service following an appointment dehors the provisions of the Rules cannot be a ground to recognize any legitimacy or right in an incumbent and further when recruitment in public service is visualized through a prescribed agency like the Public Service Commission, resort must be made to the manner prescribed and to no other manner. In the above situation, the holding of the post of Demonstrator by the respondents Nos. 5 to 8 must be viewed by this Court to be in a fortuitous capacity which may also have the effect of affecting the regular promotions of the respondents Nos. 5 and 6 to the higher post of Assistant Professor, a question on which this Court, however, does not record any finding inasmuch as the said promotions are not under challenge before this Court in any of the present proceedings. 26. Once the earlier orders of regularisation dated 8.5.2002 was set aside by this Court with the above observations, the Govt. in the Health and FW(B) Department could not have again repeated the same order in the garb of the impugned order dated 30.7.2005 and by referring to the purported consultation with the APSC It appears that the earlier regularisation of the services of the private respondents by orders dated 8.5.2002 was pursuant to a Cabinet decision dated 24.4.2002. After the said order of regularisation was set aside by this Court by the aforesaid judgment and order dated 21.6.2005, the respondents in their wisdom sent a proposal to the APSC to regularise the services of the private respondents and the APSC readily agreed to the said proposal unmindful of the fact that the appointment to a post cannot be made through such a process but is required to be made through regular process of selection. In this connection, I have perused the file bearing HLB/232/98, which contains the Cabinet memorandum and the decision thereof. I have also perused the other file bearing Nos. HLB/232/98/Pt in which there is note dated 8.7.2005 of the Deputy Secretary, Health and Family Welfare Department, desiring the APSC to approve the regularisation of the services of the private respondents. The note also reflects the approval of the Minister, health. According to the said proposal, the Secretary, APSC conveyed its No Objection to the regularisation of the services of the private respondents. 27. It is this kind of consultation that was carried out with the APSC towards retrospective regularisation of the services of the private respondents. The note also reflects the approval of the Minister, health. According to the said proposal, the Secretary, APSC conveyed its No Objection to the regularisation of the services of the private respondents. 27. It is this kind of consultation that was carried out with the APSC towards retrospective regularisation of the services of the private respondents. All the facts which existed prior to the aforesaid judgment and order dated 21.6.2005 passed in the three writ petitions filed by the petitioner referred to above, by which amongst others/the order dated 8.5.2002 of regularisation was set aside, remained the same with the exception that a note was put up to the APSC by the Deputy Secretary to the Health and Family Welfare Department and the APSC readily agreed and the proposal to regularisation of their services. In the process, the APSC did not even bother to scrutinize the service profiles of the incumbents concerned. It was only by the aforesaid two notes, everything was finalised towards issuance of the impugned order. I am afraid such a process could not have been followed towards regularisation of services of the private respondents and that too from their initial dates of appointment, which was already held to be illegal by the Division Bench of this Court. 28. From the above, what is seen is that the authority did not do anything except the aforesaid purported consultation with the APSC after the judgment in the last round of litigation delivered on 21.6.2005 in the 3 writ petitions filed by the petitioner. At the time of delivering the said judgment, the cabinet decision was very much before the Court but the Court having regard to the methodology of the regularisation, interfered with the earlier order of regularisation dated 8.5.2002. However, taking clue from the observations made in the judgment to deal with the matter appropriately by the Government and the APSC, the Govt. in the Health and FW Department took recourse to the aforesaid methodology of regularisation by furnishing a note to the APSC to which the APSC conveyed its No Objection. 29. The decisions on which Mr. However, taking clue from the observations made in the judgment to deal with the matter appropriately by the Government and the APSC, the Govt. in the Health and FW Department took recourse to the aforesaid methodology of regularisation by furnishing a note to the APSC to which the APSC conveyed its No Objection. 29. The decisions on which Mr. S.K. Goswami, learned counsel for the petitioner has placed reliance are on the principles, such as regularisation cannot be the mode of recruitment; attempt to induct an employee without following the procedure would be a back door appointment; no temporary or permanent status can be granted to an employee by regularisation; past illegal regularisation/appointment does not create entitlement to further regularisation; no regularisation is permissible in exercise of statutory power conferred under Article 162 of the Constitution of India if the appointments are made in contravention of the statutory rules; regularisation cannot be said to be a mode of appointment if the appointment itself is in infraction of the rule or it is in violation of the provisions of the Constitution, illegality cannot be regularised; when rules made under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive power of the Govt. under Article 162 of the Constitution of India etc. 30. The decisions also deal with the principles of law that long length of service cannot clothe the incumbent with the right to get regularisation of service; irregular appointees cannot be given seniority from a date interior to the date of absorption/regularisation; services rendered in pursuance of illegal appointment or promotion cannot be equated to service rendered in pursuance of an appointment or promotion validly and lawful etc. All these decisions amply fit in to the case on hand. 31. In the instant case, this Court has already held in its aforesaid judgment and order dated 21.6.2005 that by passing the orders of regularisation dated 8.5.2002 with effect from the date of initial appointment of the private respondents without being validly appointed, cannot be a legitimate basis for regularisation. It has also been held that when the recruitment to public services has to be made through a prescribed agency (in the instant case APSC), it was not open to the State Govt. to regularise the services of the private respondents without the recommendations of the APSC. It has also been held that when the recruitment to public services has to be made through a prescribed agency (in the instant case APSC), it was not open to the State Govt. to regularise the services of the private respondents without the recommendations of the APSC. It was further held that holding of the post of Demonstrator/Resident Surgeon by the respondents Nos. 5 to 8 must be viewed to be in a fortuitous capacity, which may also have the effect of affecting the regular promotions of the two private respondents, who were promoted to the higher post of Professor and Assistant Professor. In view of the aforesaid categorical findings and even otherwise also, the respondents could not have regularised the services of the private respondents in the manner and method in which they have done. So, in fact, there is clear violation of the aforesaid judgments and orders of this Court, It appears that the respondents have acted in derogation of the settled legal and factual position involved in their case and have also acted with impunity in passing the impugned orders. 32. In the instant case, not only the services of the private respondents have been regularised in the above manner but two of them have also been promoted to the post of Assistant Professor and Professor, unmindful of the fact that their initial entry to the service itself was illegal, to which effect there is already judicial pronouncements. Not only that they have also been given seniority over the petitioner, who is a regularly selected candidate by the APSC. Thus, there is all round infraction of the rules and the orders of this Court. Even in the case of ad hoc Doctors in Railways regularised as per Apex Court's order, it was held that they cannot be given seniority who were letter selected by the UPSC, MA. Haque v. UOI and others, reported in (1993) 3 SLJ (SC) 65. 33. Under no circumstances, a person regularised by methods other than the known procedure of regular selection, can be assigned higher seniority than those who have entered into the services through regular process of selection. In the instant case, it is an admitted position that the appointment to the post is to be made through the regular process of selection to be conducted by the APSC, a constitutional body. In the instant case, it is an admitted position that the appointment to the post is to be made through the regular process of selection to be conducted by the APSC, a constitutional body. The petitioner entered into the services through regular process of selection conducted by the said body. However, the authority in its wisdom not only regularised the services of the private respondents de hors such a procedure but also granted promotions to them to the higher grades with consequential seniority above the petitioner. In the case of Dr. S.B. Dutta Choudhury v. State of Assam & Ors., reported in (1976) 1 SCC 283 , the Apex Court referring to the provisions of the APSC (Limitation of Functions) Regulations, 1951 and the notification Nos. ABF. 51/63/1 dated 5.2.1964, dealing with the determination of seniority in respect of the APSC recommended candidates, held that the appointment prior to regularisation by APSC being on an officiating basis, cannot be counted towards seniority. 34. In J & K Public Service Commission & Ors. v. Dr. Narinder Mohan and others, reported in (1994) 2 SCC 630 , the Apex Court dealing with the question of regularisation held that the persons appointed on ad hoc basis in violation of the statutory rules and thereafter regularisation of their services by relaxing the rules is illegal and such action is ultra-vires the rules. In S.K. Saha v. Prem Prakash Agarwal & Ors., reported in (1994) 1 SCC 431 , the Apex Court held that services rendered prior to regular appointment cannot be counted for seniority. Similar views have been expressed in many other cases, such as Keshab Chandra Joshi v. Union of India & Ors., reported in (1992) Supp 1 SCC 272; S.K. Sinha v. State of Bihar and others, reported in (2004) 10 SCC 734 ; M.A. Khan v. State of Madhya Pradesh, reported in (1990) 4 SCC 24 ; B. Sreenivisa Reddy v. Govt. of A.P., reported in (1995) Supp 1 SCC 574; Fel v. T. Kalita, reported in (1995) 3 SCC 342 ; Chief of Naval Staff v. G. Gopalakrishna Pillai, reported in (1996) 1 SCC 521 ; Dinkar Anna Patil and another v. State of Maharashtra & Ors., reported in (1999) 1 SCC 354 ; Md. Israils and others v. State of W.B. & Ors., reported in (2002) 2 SCC 306 , etc. 35. Israils and others v. State of W.B. & Ors., reported in (2002) 2 SCC 306 , etc. 35. The decision on which the learned counsel for the private respondents have placed reliance i.e. Sukhdeo Pandey (supra) is of no help to the case of private respondents. It was a case of regularisation of service of the Extra Department Branch post Masters under the relevant scheme. The plea of delay in approaching the Court by the petitioner coupled with the plea that the petitioner's initial appointment itself was illegal is wholly misplaced and appears to have been made for the sake of any argument. In view of the earlier proceedings settling the factual and legal aspects of the matter, there is no question of any delay on the part of the petitioner. It is rather other way round in questioning the initial appointment of the petitioner way back in 1990 and that too collaterally in a proceeding initiated by the petitioner. 36. For all the aforesaid reasons, I have no hesitation to set aside and quash the impugned orders dated 30.7.2005 (Annexures Q and Q1), by which the services of the private respondents have been regularised from their initial date of appointment. Consequently, and also in terms of the earlier judgments referred to above, their promotions to the post of Assistant Professor and Professor also stand interfered with. The case of the petitioner shall now be considered for promotion to the post of Professor from the date of his eligibility and availability of the post. In any case, it can not be later than the date of promotion of the private respondent. Such consideration shall be made as expeditiously possible, preferably within 31.8.2012. 37. Writ petition is allowed awarding a cost of Rs. 10,000/- (Rupees ten thousand) only. The cost is awarded in view of the fact that the petitioner has been forced to approach this Court again and again by repeating the same errors and failures inspire of the settled factual and legal aspects of the matter in the earlier found of litigation referred to above. "Pardon the errors, but not its repetition". The cost shall be borne by the official respondents by depositing the same with the Registry of this Court on or before 31.8.2012. The petitioner will be entitled to withdraw the same upon proper identification. Petition allowed.