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2017 DIGILAW 2723 (ALL)

VISHWANATH PRASAD v. STATE OF U. P.

2017-11-24

SUDHIR AGARWAL

body2017
JUDGMENT Hon’ble Sudhir Agarwal, J.—Pursuant to order of date passed on Restoration Application, the writ petition is restored to its original number. 2. As requested and agreed by learned counsel for parties, I proceed to hear and decide this case finally at this stage. 3. By means of this writ petition, petitioners have sought following reliefs: “i- issue a writ, order or direction in the nature of mandamus commanding the respondents to pay salary to the petitioner in the revised regular pay-scale throughout the whole year till their regularization in the department. ii- issue a writ, order or direction in the nature of mandamus commanding the respondents to direct the respondents to consider the grievance of the petitioner for regularization in terms and directions as contained in the judgment and order dated 21.3.2002 passed by this Hon’ble Court.” 4. Learned counsel for petitioners contended that they are working as “Seasonal Export Moharrir” for the last more than two decades and therefore in the light of judgment of Supreme Court in Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990 (60) FLR 157, should be regularized on the post of Export Moharrir which now has merged with the Cadre of “Forester”. It is further prayed that they should be paid salary in regular pay-scale applicable to regularly appointed persons. Reliance is also placed on a judgement dated 21.3.2002 passed by a learned Single Judge in Writ Petition No. 7913 of 1990 (Vikram Bahadur Singh and others v. State of U.P. and others) wherein a direction was issued to respondents to consider petitioners for absorption on the post of “Export Moharrir” in the pay-scale of Rs. 950-1500/- and pay salary in regular pay-scale of 950-1500/- for the whole year without reducing the same, from the month of July to October, which was followed by another Single Judge in Writ Petition No. 1727 (SS) of 2004 (Vishram and others v. State of U.P. and others) decided on 5.4.2004. Similar order was passed by another Single Judge in Writ Petition No. 3667 (SS) of 2002 (Ram Bujhawan v. State of U.P. and others) decided on 2.1.2003. Similar order was passed by another Single Judge in Writ Petition No. 3667 (SS) of 2002 (Ram Bujhawan v. State of U.P. and others) decided on 2.1.2003. The detailed judgment dated 21.3.2002 which has been followed subsequently, had relied on judgments in Dharwad District P.W.D. Literate Daily Wage Employees Association and others v. State of Karnataka and others, 1990 (2) SCC 396 , State of Haryana and others v. Piara Singh, (1992) 4 SCC 118 , Prakash Narayan Sirothiya v. State of U.P. and others, 1994 (3) UPLBEC 1737 and Mool Raj Upadhyaya v. State of Himanchal Pradesh, JT 1994 (3) SC 453. 5. Learned Standing Counsel on the contrary submitted that none of the judgment are valid in law in view of Constitution Bench judgment in Secretary, State of Karnataka v. Uma Devi, 2006 (4) SCC 1 , wherein all earlier judgements taking a different view have been overruled and therefore matter now has to be decided in the light of law laid down by Constitution Bench in Secretary, State of Karnataka v. Uma Devi (supra). 6. Brief facts, as pleaded by petitioners, are, that they were engaged as “Seasonal Export Moharrir” (Seasonal Nikasi Munshi) by order dated 3.3.1987 issued by Divisional Forest Officer, South, Gorakhpur Forest Division, Gorakhpur. The appointment was made after written test held on 6.1.1987 and interview on 1.2.1987. Appointment letter filed as Annexure-1 to the writ petition shows that appointment was purely temporary and liable to be terminated at any point of time. Appointment was made in the scale of Rs. 345-510/-. The appointments being seasonal, petitioners used to work from October to June every year. From July to September, they were not treated in employment and used to be engaged on daily wage basis and paid wages accordingly. It is also said that post of “Moharrir/Nikasi Moharrir” and “Jamadar” were merged in the cadre of “Foresters” in Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service Rules, 1951 (hereinafter referred to as “Rules, 1951”) by Notification dated 16.10.2001. Petitioners have worked for a long time hence claimed regularization and regular pay-scale but having received no favourable response have filed present writ petition. 7. Respondents have contested the writ petition stating that “Seasonal Nikasi Moharrir” were employed for nine months only and due to non availability of work they were not provided Nikasi work in the month of July, August and September. 7. Respondents have contested the writ petition stating that “Seasonal Nikasi Moharrir” were employed for nine months only and due to non availability of work they were not provided Nikasi work in the month of July, August and September. Therefore, subject to availability of work, “Seasonal Nikasi Moharrirs” used to be employed on daily wage basis in July, August and September. Petitioners were appointed as “Seasonal Nikasi Moharrir” which is neither a regular cadre nor in regular establishment therefore, not entitled for relief as prayed for. It is said that cadre of “Nikasi Moharrir” was treated as part of Cadre of “Forester” by amendment made in Rules in October 2001 but that does not apply to “Seasonal Nikasi Moharrir”. 8. I have heard learned counsels for parties at length and perused record. 9. “Seasonal Workers” are engaged in Forest Department to look after functions of different natures. Persons who are engaged on Seasonal basis in certain category of work, have been recognized to fall in Feeder Cadre for substantive appointment on the post of “Forest Guard” vide U.P. Lower Subordinate Forest Service Rules 1980 (hereinafter referred to as “Rules, 1980”) which govern service of “Forest Guard” and “Wild Life Guard”. Appointing authority of “Forest Guard” is Divisional Forest Officer in the Division under his charge. In respect to “Wild Life Guard” appointing authority is Conservator, Wild Life Preservation Organisation, U.P. 10. In Rules, 1980, words “seasonal workers” has been defined in Rule 3(j) and it reads as under: “(j) “Seasonal Workers” means Stump Moharrirs, Export Moharrirs, Gate Keepers, Fire Watchers, Tractor Drivers, Cleaners and others, whose wages are distributed on monthly basis through vouchers or pay bills or on sanctioned rates for a fixed period and who have worked as such during at least three Seasons” (emphasis added) 11. Under Rules, 1980 “Guards”, “Jamadars” and “Moharrirs” all constitute different cadres and substantive appointment thereof was contemplated therein. Rule 3(f) defines “Guard”, 3(g) defines “Jamadar” and 3(i) defines “Moharrir” and read as under: “(f) “Guard” includes Forest Guards, Gazing Guards, Cattle Guards, Plantation Guards, Wire Guards, Game Guards, Wild Life Guards, Fishing Guard; (g) “Jamadar” includes Cultural Jamadar, Plantation Jamadars, Road Jamadars and Bamboo Jamadar” “(i) “Moharrirs” include Export Moharrir, Check Moharrir, Loading Moharrir, Passing Moharrir” 12. The term “Members of service” is defined in Rule 3 (h) of Rules 1980. The term “Members of service” is defined in Rule 3 (h) of Rules 1980. It reads as under: “(h) “member of the service” means a person appointed in a substantive capacity under the provisions of these Rules, or rules and orders in force before the commencement of these Rules, to a post in the cadre of the Service.” 13. The “appointing authority” is defined in Rule 3(a) and it reads as under: “(a) “appointing authority” means the Divisional Forest Officer in respect of the post of Jamadars, Moharrirs and Forest Guards, in the Division under his charge and the Conservator, Wild Life Preservation Organisation, Uttar Pradesh, in respect of the posts of Wild Life Guards, Game Guards and Fishing Guards” 14. Then there was a separate definition of “Seasonal Workers” in Rule 3(j) which we have already quoted. Substantive appointment of “Jamadar” and “Moharrir” was contemplated in Rule 5A read with Rule 8 and Rules contained in Part-V and VI of Rule, 1980. 15. Rule 5 talks of source of recruitment. Initially it was drafted and framed in a different manner. Subsequently it has been amended by substituting new Rule with effect from 16.10.2001. Both are reproduced as under: Rule-5 (as initially drafted): “5. Sources of recruitment.—Recruitment to the service shall be made from the following sources: A. Jamadars and Moharrirs- (i) By promotion from amongst permanent Guards (excluding Wild Life Guards); and (ii) By direct recruitment. Note.—Recruitment shall be so arranged that, as far as possible, 50 per cent posts in the cadre are held by direct recruits and the rest by promotions. B. Guards- (1) 90 per cent of the vacancies by direct recruitments: Provided that out of such 90 per cent vacancies, recruitment shall be so arranged that, as far as possible- (a) 25 per cent vacancies are filled by candidates from open market. (b) 65 per cent vacancies are filled from amongst seasonal workers. (2) 10 per cent of the vacancies by promotion from amongst permanent Class IV (Group D) employees who have passed the High School Examination in Science or Agriculture: Provided that it shall not be necessary for Class IV (Group D) employees to have High School Examination Certificate if they were recruited before August 1, 1972. But in any case they must have passed the Junior High School Examination.” Rule-5 (as substituted with effect from 16.10.2001): “5. But in any case they must have passed the Junior High School Examination.” Rule-5 (as substituted with effect from 16.10.2001): “5. Sources of recruitment.—Recruitment to the post of Guard in the service shall be made from the following sources: (1) Ninety percent of the vacancies by direct recruitment: Provided that out of such ninety percent vacancies, recruitment shall be so arranged that, as far as possible— (a) Twenty five percent vacancies are filled by candidates from open market. (b) Sixty five percent vacancies are filled from amongst seasonal workers. (2) Ten per cent of the vacancies by promotion from amongst substantively appointed Group ‘D; employees who have passed the High School Examination of the Board of High School and Intermediate Education, Uttar Pradesh or an Examination recognised by the Government as equivalent thereto and who have completed two years service as such on the first day of the year of recruitment. Provided that it shall not be necessary for Group ‘D’ employees who have passed High School Examination if they were recruited before August 1, 1972. But in any case they must have passed the Junior High School Examination. 16. The aforesaid Rule 5 as stood before 16.10.2001 makes it clear that lowest regular cadre in the establishment was that of “Guards”. In this cadre 90 per cent recruitment was to be made by direct and 10 per cent by promotion from permanent Class-IV, i.e., Group-D employees who possess qualification of High School Examination in Science or Agriculture. 90 per cent direct recruitment was to be made in a manner that 25 per cent vacancies were to be filled in from open market and 65 per cent from amongst “Seasonal Workers”. This term “Seasonal Workers”, as we have already seen in Rule 3(j) of Rules 1980 included a “Seasonal Moharrir”, amongst others, who have worked at least for three Seasons. Therefore, a “Seasonal Export Moharrir”, who has continued to work in three seasons, constituted feeder cadre for appointment, through direct recruitment, to the extent of 65 per cent vacancies, in the cadre of “Guard”. The same provision has continued, so far as recruitment to the cadre of “Guard” is concerned, even after 16.10.2001 and entitlement for direct recruitment to the extent of 65 per cent on the post of “Guard” continued to be available to “Seasonal Workers”. 17. Rule 8 provides qualification for “direct recruitment” and reads as under: “8. The same provision has continued, so far as recruitment to the cadre of “Guard” is concerned, even after 16.10.2001 and entitlement for direct recruitment to the extent of 65 per cent on the post of “Guard” continued to be available to “Seasonal Workers”. 17. Rule 8 provides qualification for “direct recruitment” and reads as under: “8. Academic qualifications.—A candidate for direct recruitment to the various categories of posts must possess the following qualifications: (1) Moharrir and Jamadar.—Must have passed High School Examination with Science or Agriculture of the U. P. Board of High School and Intermediate Examination or an examination recognised as equivalent thereto. (2) Guards Essential.—Must have passed the High School Examination with Science or Agriculture of the U. P. Board of High School and Intermediate Examination or an examination recognised as equivalent thereto. Preferential.—(1) In the case of recruitment of candidates from open market preference will be given to ex-Home Guards who have worked as such for at least one year. (2) In the case of seasonal workers weightage shall be given to the total length of service put in as seasonal worker and their record of service.” 18. Rule 8 read with Rule 5 makes it clear that for direct recruitment on the post of “Guard”, essential qualification is High School with Science or Agriculture or an examination equivalent thereto but such “Seasonal Workers” who have worked for more than three seasons shall be given weightage according to the length of service and record of service. 19. Rules relating to educational qualification etc. are “rules relating to recruitment”. There is no provision in the Rules, 1980 dealing with relaxation of “rules relating to recruitment”. Only “rules pertaining to “conditions of service” could have been relaxed by State Government if it is causing undue hardship in exercise of power under Section 27, which reads as under: “27. Relaxation from the conditions of service.—Where the State Government is satisfied that the operation of any rule regulating the conditions of service of persons appointed to the service cause undue hardship in any particular case it may notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.” (emphasis added) 20. At the time of commencement of Rules, 1980 pay-scale applicable to cadre of “Guard” under Rule 22(2) was 175-250/- but the said Rule also provided that pay-scale shall be such as may be determined by Government from time to time. 21. Learned counsel for petitioners have relied on Rules, 1951 which are applicable to the Rangers, Deputy Rangers and Foresters. Rule-4 thereof shows that source of recruitment to the post of “Forester” is 50 per cent by promotion from amongst substantively appointed “Guards” which includes “Forest Guards” and “Wild Life Guards” and remaining 50 per cent by direct recruitment. The post of “Forester”, therefore, is a promotional post to the cadre of “Guards”; and, “Seasonal Export Moharrir” who have completed three seasons constitute a feeder cadre for direct recruitment to the post of “Guard”. Therefore the contention that “Seasonal Export Moharrir” were merged to the cadre of “Forester” is patently incorrect and is not supported by any material. Rule-5 as amended on 16.10.2001, as relied by petitioners, is nothing but a misreading and misconceived. 22. Thus, prior to 16.10.2001, “Moharrir” and “Jamadar” besides “Forest Guards” and “Wild Life Guards” were in feeder cadre for promotion to the post of “Forester” but after amendment made by Notification dated 16.10.2001 in Rules 1951, promotion is now open to “Forest Guards” and “Wild Life Guards” to the post of “Forester”. 23. Rule 3(h) defining “Members of Service” was also amended with effect from 16.10.2001 declaring that all substantively appointed “Jamadars” and “Moharrirs” on the date of enforcement of Subordinate Forest (Rangers, Deputy Rangers and Foresters) Service (Fourth Amendment) Rules, 2001 (hereinafter referred to as “Fourth Amendment Rules, 2001”) shall be deemed to be substantively appointed “Foresters”. 24. Therefore, cadre of substantively appointed “Jamadars” and “Moharrirs” came to an end and merged in the cadre of “Foresters” but it has no application to the “Seasonal Workers” at all. The “Seasonal Workers” defined in Rule 3 (j) of Rules, 1980 continued to be so and also continued to be a source of recruitment as a direct recruitment to the post of 60 per cent of the vacancies on the post of Guard. The contention of petitioners, therefore, otherwise that “Seasonal Export Moharrir” stood absorbed with the cadre of “Foresters” is not correct. 25. The contention of petitioners, therefore, otherwise that “Seasonal Export Moharrir” stood absorbed with the cadre of “Foresters” is not correct. 25. Unfortunately, these Rules have not been examined at all at any stage in various judgments relied by petitioners and in the judgments rendered in Vishram and others v. State of U.P. and others (supra), Ram Bujhawan v. State of U.P. and others (supra) and even Vikram Bahadur Singh and others v. State of U.P. and others (supra), it has not been examined that on the date of judgments there was no cadre of “Export Moharrir” in existence under Rules, 1980 and Rules, 1951 did not apply to “Moharrir” or “Jamadar” but were applicable to “Rangers”, “Deputy Rangers” and “Foresters”. 26. Since prior to 16.10.2001, “Jamadars” and “Moharrirs” besides “Forest Guards” etc. appointed on substantive basis constituted feeder cadre for promotion to the post of “Forester”, as a one time measure, by amending definition of “Member of Service” by Fourth Amendment Rules, 2001, Rule framing authority declared that all substantively appointed “Jamadars” and “Moharrirs” on the date of enforcement of Fourth Amendment Rules, 2001 would be deemed to have been appointed as “Foresters” for the reason that on that very date, with simultaneous amendment made in Rules, 1980, substantive cadre of “Moharrir” and “Jamadar” ceased and Rules, 1980, on and after 16.10.2001, contemplate only Cadres of “Forest Guards” and “Wild Life Guards”. 27. Therefore, judgments relied by learned counsel for petitioners having no occasion to consider these statutory provisions, have issued direction for absorption on a post which ceased to exist on the date of judgments and not available at all. In these circumstances, I have no option but to observe that statutory rules and Scheme having not been considered in the aforesaid judgments and directions issued therein to absorb on such posts as were not available on the date of judgment, the said directions can be said to be only directions per incurium and cannot be treated to be a binding precedent. 28. What constitute “per incurium” need not detain Court’s attention since time and again it has been explained by Apex Court. 29. The expression means through inadvertence or a point of law is not consciously determined. If an issue is neither raised, nor argued, a decision by the Court after pondering over the issue in depth would not be precedent binding on the Courts. 29. The expression means through inadvertence or a point of law is not consciously determined. If an issue is neither raised, nor argued, a decision by the Court after pondering over the issue in depth would not be precedent binding on the Courts. Per incurium are decisions given in ignorance or forgetfulness of some statutory provisions or where the Court omits to consider a binding precedent of the same Court or the superior Court rendered on the same issue or where Court presumes something contrary to the facts of the case. (Vide Mamleshwar Prasad and another v. Kanahaiya Lal (Dead), (1975) 2 SCC 232 ; Rajpur Ruda Meha and others v. State of Gujrat, AIR 1980 SC 1707 ; A.R. Antule v. R.S. Nayak, AIR 1988 SC 1531 ; Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38 ; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and others, (1990) 3 SCC 682 ; State of West Bengal v. Synthetics and Chemicals Ltd., (1991) 1 SCC 139; Maharashtra State Cooperative Cotton Growers Marketing Federation Ltd and another v. Employees’ Union and another, 1994 Supp (3) SCC 385; Pawan Alloys & Casting Pvt Ltd, Meerut v. U.P. State Electricity Board and others, (1997) 7 SCC 251 ; Ram Gopal Baheti v. Girdharilal Soni and others, (1999) 3 SCC 112 ; Sarnam Singh v. Dy. Director of Consolidation and others, (1999) 5 SCC 638 ; Government of Andhra Pradesh v. B. Satyanarayana Rao, AIR 2000 SC 1729 ; Arnit Das v. State of Bihar, (2000) 5 SCC 488 ; M/s. Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., AIR 2001 SC 2293 ; A-One Granites v. State of U.P. and others, (2001) 3 SCC 537 ; Suganthi Suresh Kumar v. Jagdeeshan, AIR 2002 SC 681 ; Director of Settlements A.P. and others v. M.R. Apparao and another, (2002) 4 SCC 638; S. Shanmugavel Nadar v. State of T.N and another, (2002) 8 SCC 361 ; State of Bihar v. Kalika Kuer Kalika Singh and others, AIR 2003 SC 2443 ; and Manda Jaganath v. K.S. Rathnam and others, (2004) 7 SCC 492 ). 30. 30. In B. Shyama Rao v. Union Territory of Pondichery and others, AIR 1967 SC 1480 , the Constitution Bench of the Supreme Court observed as under : “It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down therein.” 31. In State of U.P. and another v. Synthetics & Chemicals Ltd. and another, (1991) 4 SCC 139 , Court followed the aforesaid judgment in B. Shyama Rao and held as under : “Any declaration or conclusion arrived without application of mind or proceeded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent......A conclusion without reference to relevant provision of law is weaker than even casual observation.” 32. Similar view has been reiterated in Divisional Controller, KSRTC v. Mahadeva Shetty and another, (2003) 7 SCC 197 , observing that casual expressions in a judgment carry no weight at all, nor every passing remark, however eminent, can be treated as an ex-cathedra statement having the weight of authority.” 33. In N. Bhargavan Pillai v. State of Kerala, AIR 2004 SC 2317 (para 14) Court said that if a view has been expressed without analysing the statutory provision, it cannot be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. The same law has been reiterated in Faujdar v. Deputy Director of Education and others, 2006 (3) AWC 2243 . 34. In Civil Misc. Writ Petition No. 47754 of 2005 (M/s. J.K. Construction Engineers and others v. Union of India and others) decided on 28.2.2006, a Division Bench of this Court held : “The doctrine of per incuriam is applicable where by inadvertence a binding precedent or relevant provisions of the Statute have not been noticed by the Court.”...(Para 106) 35. Similar view has been taken by another Division Bench in Brahma Prakash v. State of U.P. and others, 2006(2) ESC 1017. Similar view has been taken by another Division Bench in Brahma Prakash v. State of U.P. and others, 2006(2) ESC 1017. In para 40 of the judgment this Court held as under- “Thus in view of aforesaid discussion, it is clear that while rendering the decision in Radha Krishna Gupta’s case earlier Division Bench of this Court with all respect did neither ascertain the ratio of decisions referred in the judgment, nor discussed, as to how the factual situation fits in with the fact and situation of the decision on which reliance was placed. Contrary to it the decision of Hon’ble Apex Court which requires consideration of various factors in this regard, referred herein before in our judgment has been completely ignored by the Division Bench, therefore, being a decision given per incuriam, cannot be held to be binding authority under law.” 36. In the judgements referred to above, the aforesaid doctrine of per incuriam has been discussed in detail and it has been held that a judgment per incuriam does not lay down a binding precedent. 37. Petitioners working as “Seasonal Workers” do constitute Feeder Cadre for appointment as open market candidates under Rule 5(1) of Rule 1980 but they can only be considered if possess requisite qualification prescribed under Rule 8 for the post of “Guard”, i.e., High School examination with Science or Agriculture or any equivalent qualification. 38. So far as the reliance placed by petitioners on the Supreme Court judgment in Bhagwati Prasad v. Delhi State Mineral Development Corporation (supra) is concerned, we find that in State of Rajasthan and others v. Daya Lal and others, (2011) 2 SCC 429 , Court observed that direction contained therein stood overruled by Constitution Bench in Uma Devi (supra). Para-21 of judgment in State of Rajasthan and others v. Daya Lal (supra) reads as under: “21. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state Government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. The decision relied upon by the High Court namely the decision in Anshkalin Samaj Kalyan Sangh of the High Court no doubt directed the state Government to frame a scheme for regularization of part-time cooks and chowkidars. It is clear from the said decision, that such scheme was intended to be an one-time measure. Further said decision was rendered by the High Court prior to Uma Devi, relying upon the decision of this Court in Daily Rated Casual Labour v. Union of India, 1988 (1) SCC 122 , Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990 (1) SCC 361 and Dharwad District PWD Literate Dalit Wage Employees Association v. State of Karnataka, 1990 (2) SCC 396 . These directions were considered, explained and in fact, overruled by the Constitution Bench in Uma Devi. The decision in Anshkalin Samay Kalyan Singh is no longer good law. At all events, even if there was an one time scheme for regularisation of those who were in service prior to 1.5.1995, there cannot obviously be successive directions for scheme after scheme for regularization of irregular or part-time appointments. Therefore the said decision is of no assistance.” 39. The statutory qualification, more so essential qualification, cannot be a substitute of length of working. What should be a qualification, whether academic or experience, is in the field of Legislation and no interference in judicial review is permissible. 40. In Sushma Sharma and others v. State of Rajasthan and others, AIR 1985 SC 1367 , issue of cut of date for determination of eligibility for temporary teacher for absorption was considered and Court held: “If a legislature considers a particular period of experience to be necessary, the wisdom of such a decision is not subject to judicial review. ... It is well-settled that if a particular period of experience is fixed for screening or for absorption, it is within the wisdom of the legislature, and what period should be sufficient for a particular job or a particular employment is not subject to judicial review.” 41. This decision has been cited and relied in A. Manjula Bhashini and others v. The Managing Director, A.P. Women’s Cooperative Finance Corporation Ltd. and another, (2009) 8 SCC 431 . 42. In the matter of public appointment, certain principles have been formulated in M.P. State Coop. This decision has been cited and relied in A. Manjula Bhashini and others v. The Managing Director, A.P. Women’s Cooperative Finance Corporation Ltd. and another, (2009) 8 SCC 431 . 42. In the matter of public appointment, certain principles have been formulated in M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav and others, (2007) 8 SCC 264 , and same are as under: “(1) The appointments made without following the appropriate procedure under the Rules/Government Circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India. (2) Regularisation cannot be a mode of appointment. (3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (4) Those who come by back door should go through that door. (5) No regularization is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory Rules. (6) The Court should not exercise its jurisdiction on misplaced sympathy. (7) If the mischief played so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection. (8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.” (emphasis added) 43. Referring to Constitution Bench judgment in Uma Devi (supra); and M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav and others (supra), Supreme Court in Renu and others v. District and Sessions Judge, Tis Hazari and another, (2014) 14 SCC 50 , has said: “A similar view has been reiterated by the Constitution Bench of this Court in Secretary, State of Karnataka and others v. Umadevi and others, AIR 2006 SC 1806 , observing that any appointment made in violation of the Statutory Rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. “Adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment”. The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.” 44. Now coming to the question of power of relaxation, we have already said that Rule contemplates power of relaxation relating to Rules of “conditions of service” and not Rules of “recruitment”. 45. The distinction between “recruitment” and “conditions of service” and rules relating to either of them is no more res integra having been considered time and again. 46. In State of Madhya Pradesh v. Shardul Singh, 1970 (1) SCC 108 , Court explained the expression “conditions of service” as under: “The expression “conditions of service” is an expression of wide import. It means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it in matters like pension etc.” 47. In I.N. Subba Reddi v. Andhra University, 1977 (1) SCC 554 , Court explained the term as under: “The expression ‘conditions of service’ means all those conditions which regulate the holding of a post by a person right from the time of his appointment till his retirement and even beyond it, in matters like pension etc.” 48. Same view was taken in para 6 of the judgment in Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg and another, 1977 (2) SCC 457 . 49. In Lily Kurian v. Sr. Lewina and others, 1979 (2) SCC 124 , in para 13 of the judgment, Court referred to above decisions and observed that the expression “conditions of service” includes everything from the stage of appointment to the stage of termination of service and even beyond including the matter pertaining to disciplinary action. 50. In Syed Khalid Rizvi v. Union of India, (1993) 3 SCC 575, Court held where a rule permits relaxation of provisions pertaining to “conditions of service”, the same would be applicable to the condition after appointment to the service in accordance with rules. 50. In Syed Khalid Rizvi v. Union of India, (1993) 3 SCC 575, Court held where a rule permits relaxation of provisions pertaining to “conditions of service”, the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that “conditions of recruitment” and “conditions of service” are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed. 51. A Division Bench of this Court (in which I was also a member) in Dr. Rajeev Ranjan Mishra and others v. State of U.P. and others, 2008 (1) AWC 810, referring to some of above authorities, has said: “The distinction between rule of “recruitment” and “condition of service” is no more res integra having already been settled by the Apex Court in a catena of cases. In State of M.P. v. Shardul Singh, 1970(1) SCC 108 the Apex Court held that the term “conditions of service” means all those conditions which regulate the holding of a post by a person right from the time of his appointment till retirement and even pension etc. It was reiterated in I.N. Subbareddy v. State of A.P., 1997(1) SCC 554. In Syed Khalid Rizvi v. Union of India, 1993 Supp (3) SCC 575, the Apex Court held where a rule permits relaxation of provisions pertaining to “conditions of service”, the same would be applicable to the condition after appointment to the service in accordance with rules. It also held that that “conditions of recruitment” and “conditions of service” are distinct and the latter is preceded by an appointment according to rules, the former cannot be relaxed.” “Part 3, 4 and 5 contain rules of recruitment which includes rules pertaining to reservation, eligibility and other qualifications with respect to nationality, educational qualifications, age, character, marital status, physical fitness etc. and procedure for recruitment. The rules pertaining to ‘recruitment’ cannot be relaxed by exercising power under Rule 26 since such rules are not relaxable.” 52. The above decision has been followed in Devendra Nayak and another v. State of U.P. and others, 2011(8) ADJ 63 (NOC). 53. There is a Full Bench judgment of Gujarat High Court also dealing with this issue in A.J. Patel and others v. The State of Gujarat and others, AIR 1965 Guj 23 . The above decision has been followed in Devendra Nayak and another v. State of U.P. and others, 2011(8) ADJ 63 (NOC). 53. There is a Full Bench judgment of Gujarat High Court also dealing with this issue in A.J. Patel and others v. The State of Gujarat and others, AIR 1965 Guj 23 . The judgment was rendered by Hon’ble K.T. Desai, C.J. and in para 27, with reference to the terms “recruitment” and “conditions of service” mentioned in Article 309 of the Constitution, His Lordship said: “From this Article it is evident that rules relating to the recruitment of persons to public services and posts are distinct from rules relating to the conditions of service. The conditions of service are conditions applicable to persons who have been appointed to public services and posts. The terms and condition relating to recruitment and relating to appointment to public services and posts must, therefore, be regarded as distinct and different from the conditions of service governing persons on their appointment to public services and posts.” 54. Hence, the relief sought by petitioners in this Writ Petition in view of above statutory provisions and exposition of law discussed above cannot be granted. 55. The writ petition lacks merits. Dismissed.