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2020 DIGILAW 28 (GAU)

Tagam Dong v. Government Of Arunachal Pradesh

2020-01-07

NANI TAGIA

body2020
JUDGMENT Nani Tagia, J. - This writ petition under Article 226 of the Constitution of India, have been filed by the writ petitioners for setting aside of the order of regularisation of services of the respondent Nos. 6 to 12 as Technical Assistant in the State Council for Information Technology and eGovernance, Government of Arunachal Pradesh by order dated 21.01.2015, issued by the Chairman, State Council for Information Technology and e-Governance, Government of Arunachal Pradesh, vide memo No. DIT/SCITeG/141/2014-15/348-65. Although, no any specific prayer has been made by the writ petitioners for setting aside of the appointment of the respondent Nos. 13 & 14 as Technical Assistant in the prayer column of the writ petition, yet, the petitioners in paragraph-13 of the writ petition has pointed out that the respondent Nos. 13 to 14 were appointed as Technical Assistant on contractual basis by an order dated 09.01.2015, for a period of 6 (six) months in violation of the Recruitment Rule and also in violation of the Constitutional norms of appointment. The respondent Nos. 13 & 14, are stated to be still working as a Technical Assistant despite their initial appointment being only for 6 (six) months vide appointment order dated 09.01.2015. 2. The facts leading to filing of the present writ petition by the petitioners may, briefly be stated as follows: wxyz (i). The writ petitioners, 25 in number, who are Technical Degree holders from a recognised institute of India, states that the petitioner No.1 is a Master Degree holder in Information Technology, the petitioner Nos. 2 to 11 are Bachelors Degree holder of Technology in Computer Science and Engineering, the petitioner Nos. 12 to 18 are Master Degree holder in Technology Degree in Computer Science & Engineering, the petitioners Nos. 19 to 20 are Bachelor Degree holder in Information Technology, the petitioner No. 21 is a Bachelor Degree holder in Electronic & Communication and petitioner Nos. 22 to 25 are Bachelor Degree holder in Computer Application. zyxw wxyz (ii). According to the petitioners, respondent Nos. 6 to 12 were initially appointed as Technical Assistant for a period of 6 (six) months on contract basis by the respondent No.5 /the Director, State Council for Information and eGovernance by an order dated 17.11.2011 and 18.11.2011 ( annexed as Annexure 6-Series to the writ petition). Although, the respondent Nos. zyxw wxyz (ii). According to the petitioners, respondent Nos. 6 to 12 were initially appointed as Technical Assistant for a period of 6 (six) months on contract basis by the respondent No.5 /the Director, State Council for Information and eGovernance by an order dated 17.11.2011 and 18.11.2011 ( annexed as Annexure 6-Series to the writ petition). Although, the respondent Nos. 6 to 12, were appointed only for a period of 6 (six) months on contract basis as indicated above, their appointment came to be extended by the respondent authorities from time to time and they continued to serve as Technical Assistant in the respondent Department on contract basis. zyxw wxyz (iii). While the respondent Nos. 6 to 12 continued to work as a Technical Assistant on contract basis, it is the case of the writ petitioners that the Government of Arunachal Pradesh framed a Recruitment Rule for the post of Technical Assistant which was notified in the State Gazette on 15.02.2013. In the Recruitment Rule as published in the Gazette with regard to the post of Technical Assistant, it is provided that the post shall be filled up 100% by direct recruitment and the educational and other qualification required for direct recruitment are prescribed to be (i). Diploma in IT and (ii). Class- XII passed from recognized Board with 6 (six) months Diploma in Computer Science. zyxw wxyz (iv), It is the further case of the writ petitioners that after the Recruitment Rule for filling up of Technical post was framed by the State Government, writ petitioners, who are technically qualified to be appointed for the post of Technical Assistant were in expectation that for filling up of the post of Technical Assistant, the respondent authorities would duly put up a public advertisement so as to enable the petitioners along with others to participate in the selection process to be undertaken by the respondent authorities, in accordance with the Recruitment Rule; but instead the writ petitioners on an information received from the Department pursuant to an RTI application filed, came to know that the respondent Nos. 6 to 12, who were initially appointed as Technical Assistant by the appointment order dated 17.11.2011 and 18.11.2011, respectively, were regularised in the post of Technical Assistant by the impugned order dated 21.01.2015, issued by the Chairman, State Council for IT and e-Governance, Itanagar, vide memo No. DIT/SCITeG/141/2014-15/348-65, without putting up any public advertisement for the recruitment of the post of Technical Assistant, in accordance with the Recruitment Rule framed by the State Government. zyxw wxyz (v). The writ petitioners, accordingly, states that impugned regularisation of the respondent Nos. 6 to 12, in the post of Technical Assistant vide impugned order dated 21.01.2015, cannot be sustained in law as the same is in violation of the Recruitment Rule of Technical Assistant as well as Article 14 and 16 of the Constitution of India. zyxw wxyz (vi). It is the further case of the writ petitioners that in addition to the illegal regularisation of the respondent Nos. 6 to 12, the respondent authorities have also appointed respondent Nos. 13 & 14 in the post of Technical Assistant for a period of 6 (six) months by an order dated 09.01.2015, issued by the Chairman, State Council for IT and E-Governance, vide No. SCITeG-67/2012-13 (annexed as Annexure ''6'' series to the writ petition). zyxw wxyz (vii). The writ petitioner contends that although the appointment of respondent Nos. 13 and 14 were made on contract basis without putting up any public advertisement only for a period of 6(six) months, yet, the respondent Nos. 13 and 14 continues to work as Technical Assistant. As the appointment of respondent Nos. 13 and 14 had also been made without following the Constitutional norms, the same are liable to be set aside and quashed, contends the petitioners. zyxw 3. The State respondents have contested the writ petition by filing a counter-affidavit for and on behalf of respondent Nos. 1, 2, 3, 4 and 5. In the counter-affidavit filed, the respondent authorities have contended that "Arunachal Pradesh State Council for Information Technology and e-Governance" was carved out from "the Arunachal Pradesh State Council for Science and Technology" by an order dated 30.05.2011, issued by the Chief Secretary, Government of Arunachal Pradesh, Itanagar. 1, 2, 3, 4 and 5. In the counter-affidavit filed, the respondent authorities have contended that "Arunachal Pradesh State Council for Information Technology and e-Governance" was carved out from "the Arunachal Pradesh State Council for Science and Technology" by an order dated 30.05.2011, issued by the Chief Secretary, Government of Arunachal Pradesh, Itanagar. After the State Council for IT and e-Governance was established as separate entity by an order dated 30.05.2011, there was dearth of man power in the Department and therefore, the State Council for IT and e-Governance decided to undertake recruitment of various posts on contract basis and accordingly, published an advertisement in the website maintained by the Department on 04.11.2011, wherein application for various posts including 6(six) posts of Technical Assistant were invited to be filled up on contract basis. It was in pursuance thereto, that the respondent Nos. 6 to 12, came to be appointed as Technical Assistants for a period of 6 (six) months by an order dated 17.11.2011 and 18.11.2011. 4. The State respondents further contends in the counter-affidavit that although the respondent Nos. 6 to 12, were initially appointed for a period of 6 (six) months, their appointments were subsequently extended from time to time and they continued to work as Technical Assistant. The State respondents contend that by an order dated 20.01.2015, issued by the Chairman, State Council for IT and e-Governance, vide Memo No. DIT/SCITeG/141-2014-15, 7 (seven) posts of Technical Assistant along with various other posts were created in the Department for the first time. As the 7 (seven) post of Technical Assistant had been created by an order dated 20.01.2015, the State Council for IT and eGovernance moved a proposal for absorption of the respondent Nos. 6 to 12 in the newly created post of Technical Assistant by an order dated 21.01.2015 and accordingly, having regard to the sincere and dedicated service rendered to the Department by the respondent Nos. 6 to 12, the Chairman, State Council for IT and e-Governance by an order dated 21.01.2015 ordered regularisation of the services of the respondent Nos. 6 to 12 as Technical Assistant. It is also contended by the State respondents in the counter-affidavit filed, that the proposals for creation of regular posts of Technical Assistant were made for the purpose of absorbing the respondent Nos. 6 to 12 as Technical Assistant on regular basis. 5. 6 to 12 as Technical Assistant. It is also contended by the State respondents in the counter-affidavit filed, that the proposals for creation of regular posts of Technical Assistant were made for the purpose of absorbing the respondent Nos. 6 to 12 as Technical Assistant on regular basis. 5. With regard to the appointment of respondent Nos. 13 & 14, the State respondent contends that their appointment on contract basis was made in the administrative exigencies of service. It is further contended in their affidavit, more particularly, in paragraph-5, that except petitioner Nos. 2 & 16, none of the petitioners were eligible for appointment as Technical Assistant in the year 2011. 6. The respondent Nos. 6 to 12 have also contested the writ petition by filing a counteraffidavit, wherein, the respondent Nos. 6 to 12 have adopted the stand taken by the State respondents. 7. The respondent Nos. 13 & 14 have chosen not to file any counter-affidavit. 8. Heard Mr. D. Panging, learned counsel for the petitioners. Also, heard Mr. S. Tapin, learned counsel for the respondent Nos. 1 to 5; Mr. N. Ratan, learned counsel for the respondent Nos. 6 to 12. None appears for respondent Nos. 13 & 14. 9. Mr. D. Panging, learned counsel for the petitioners have argued that when the respondents Nos. 6 to 12 were appointed as Technical Assistant in the year 2011, they were appointed in a non-existing post. The respondent Nos. 6 to 12 continued to work as Technical Assistant on contract basis in the Department in a non-existent post until the creation of 7(seven) number of posts of Technical Assistant by an order dated 20.01.2015. Learned counsel for the petitioners submit that as the 7(seven) number of posts of Technical Assistant were created by an order dated 20.01.2015 only, the writ petitioners have the fundamental right granted to them under Article 14 & 16, to receive an equal opportunity to compete and participate for appointment as a Technical Assistant in accordance with the Rules, therein. The regularisation of the respondent Nos. The regularisation of the respondent Nos. 6 to 12 in the post of Technical Assistant by the impugned order dated 21.01.2015 having been made without affording equal opportunity to the writ petitioners to participate in the selection process, who are otherwise, qualified and eligible to participate, the rights granted to the writ petitioners under Article 14 & 16 of the Constitution of India have been violated and therefore, the impugned order of regularisation dated 21.01.2015 should be interfered with and the same is liable to be set aside and quashed. 10. With regard to the appointment of respondent Nos. 13 & 14 by the impugned appointment order dated 09.01.2015, the learned counsel for the petitioners also submit that even in the case of appointment on contract basis, the State authorities are duty bound to make it in consonance with the constitutional norms and the same having not been done, appointment of the respondent Nos. 13 & 14 are also liable to be set aside. 11. Mr. S. Tapin, learned Sr. Govt. Advocate on the other hand submits that the initial appointment of the respondent Nos. 6 to 12 in the year 2011 were made after due publication of the advertisement in the website of the Department and therefore, their initial selection cannot be faulted with, for not having made in consonance with the Constitutional provision. If the initial appointment of the respondent Nos. 6 to 12 was made in consonance with the constitutional provision, the respondent authorities was well within their competence to regularise their services at subsequent point of time, having regard to the sincere and dedicated services rendered by the respondents. With regard to the appointment of respondent Nos. 13 and 14 on contract basis without putting up any public advertisement, Mr. Tapin, learned Sr. Govt. Advocate submits that the appointment were made in exigencies of service and therefore, no fault can be found with the respondent authorities with regard to the appointment of the respondent Nos. 13 & 14. 12. Mr. N. Ratan, learned counsel appearing for the respondent Nos. 6 to 12 contends that as the initial appointment of the respondent Nos. Govt. Advocate submits that the appointment were made in exigencies of service and therefore, no fault can be found with the respondent authorities with regard to the appointment of the respondent Nos. 13 & 14. 12. Mr. N. Ratan, learned counsel appearing for the respondent Nos. 6 to 12 contends that as the initial appointment of the respondent Nos. 6 to 12 were made after giving due publication of the recruitment process being undertaken by the Department in Official website of the Department, no fault can be found with the Department in respect of recruitment made in the year 2011 for appointment of the respondent Nos. 6 to 12 as Technical Assistant on contract basis. If the initial recruitment was made by following the constitutional norms as there was no Recruitment Rule for the post of Technical Assistant, at that point in time, the appointment of respondent Nos. 6 to 12 cannot be termed as illegal appointment rather it can, at best, be termed an irregular appointment. If the appointment of respondent Nos. 6 to 12 is not illegal appointment rather an irregular appointment, it would be well within the competence of the respondent authorities to regularise the services of the respondent Nos. 6 to 12. Mr. Ratan, learned counsel further contends that creation of 7(seven) posts of Technical Assistant by an order dated 20.01.2015 was also made only for the purpose of regularising the services of respondent Nos. 6 to 12 as Technical Assistant, who were otherwise, not an illegal appointee but an irregular appointee. Such a course is permissible under the extant law. 13. In support of his contention advanced, as above, Mr. Ratan, learned counsel has relied on the decision rendered by the Hon''ble Supreme Court in the case of Secretary State of Karnataka vs. Umadevi(3),2006 4 SSC 1 . To appreciate the contention of Mr. Ratan, learned counsel, the relevant paragraph Nos. 16, 17, 18, 43 & 53 relied on by him are quoted herein below: wxyz "...16. In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors., (1979) 3 SCR 937 , this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors., (1979) 3 SCR 937 , this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization. zyxw wxyz 17. We have already indicated the constitutional scheme of public employment in this country, and the executive, or for that matter the court, in appropriate cases, would have only the right to regularise an appointment made after following the due procedure, even though a non-fundamental element of that process or procedure has not been followed. This right of the executive and that of the court would not extend to the executive or the court being in a position to direct that an appointment made in clear violation of the constitutional scheme, and the statutory rules made in that behalf, can be treated as permanent or can be directed to be treated as permanent. zyxw wxyz 18. zyxw wxyz 18. Without keeping the above distinction in mind and without discussion of the law on the question or the effect of the directions on the constitutional scheme of appointment, this Court in Daily Rated Casual Labour v. Union of India directed the Government to frame a scheme for absorption of daily-rated casual labourers continuously working in the Posts and Telegraphs Department for more than one year. This Court seems to have been swayed by the idea that India is a socialist republic and that implied the existence of certain important obligations which the State had to discharge. While it might be one thing to say that the daily-rated workers, doing the identical work, had to be paid the wages that were being paid to those who are regularly appointed and are doing the same work, it would be quite a different thing to say that a socialist republic and its executive, is bound to give permanence to all those who are employed as casual labourers or temporary hands and that too without a process of selection or without following the mandate of the Constitution and the laws made thereunder concerning public employment. The same approach was made in Bhagwati Prasad v. Delhi State Mineral Development Corpn. where this Court directed regularisation of daily-rated workers in phases and in accordance with seniority. zyxw wxyz 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. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. zyxw wxyz 53. One aspect needs to be clarified. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. zyxw wxyz 53. 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 of regularisation 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 abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." zyxw 14. Alternatively, Mr. Ratan, learned counsel for the respondent Nos. 6 to 12 contends that having regard to the fact that the respondent Nos. 6 to 12 have rendered more than 8(eight) years of service in the Department by now and they have also crossed the maximum age limit prescribed for further appointment in a Government service, this Court should take sympathetic view, and by taking such a sympathetic view, the regularisation of the services of the respondent Nos. 6 to 12 have rendered more than 8(eight) years of service in the Department by now and they have also crossed the maximum age limit prescribed for further appointment in a Government service, this Court should take sympathetic view, and by taking such a sympathetic view, the regularisation of the services of the respondent Nos. 6 to 12 in the post of Technical Assistant should not be set aside and quashed, howsoever, illegal may the regularisation of the respondents Nos. 6 to 12 in the post of Technical Assistant be, inasmuch as, respondents Nos. 6 to 12 have not played any fraud and misrepresented themselves before the respondent authorities. 15. In support thereof, Mr. Ratan, learned counsel has relied on a decision rendered by the Hon''ble Supreme Court in the Case of Vikas Pratap Singh v. State of Chhattisgarh, (2013) 14 SCC 494 . The relevant paragraphs of the said judgment which have been referred to by the learned counsel, are quoted, herein, below: wxyz "22. The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or mala fide. It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardising the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bona fide of the candidate in such appointment and length of service of the candidate after such appointment. zyxw wxyz 23. In Girjesh Shrivastava v. State of M.P, the High Court had invalidated the rule prescribing selection procedure which awarded grace marks of 25 per cent and age relaxation to the candidates with three years'' long non-formal teaching experiences as a consequence of which several candidates appointed as teachers at the formal education institutions under the said rule stood ousted. In Girjesh Shrivastava v. State of M.P, the High Court had invalidated the rule prescribing selection procedure which awarded grace marks of 25 per cent and age relaxation to the candidates with three years'' long non-formal teaching experiences as a consequence of which several candidates appointed as teachers at the formal education institutions under the said rule stood ousted. This Court while concurring with the observations made by the High Court kept in view that upon rectification of irregularities in appointment after a considerable length of time an order for cancellation of appointment would severely affect economic security of a number of candidates and observed as follows: zyxw wxyz "31. Most of them were earlier teaching in non-formal education centres, from where they had resigned to apply in response to the advertisement. They had left their previous employment in view of the fact that for their three-year long teaching experiences, the interview process in the present selection was awarding them grace marks of 25%. It had also given them a relaxation of 8 years with respect to their age. Now, if they lose their jobs as a result of the High Court''s order, they would be effectively unemployed as they cannot even revert to their earlier jobs in the non-formal education centres, which have been abolished since then. This would severely affect the economic security of many families. Most of them are between the age group of 35-45 years, and the prospects for them of finding another job are rather dim. Some of them were in fact awaiting their salary rise at the time of quashing of their appointment by the High Court." zyxw wxyz Therefore, mindful of the aforesaid circumstances this Court directed non-ouster of the candidates appointed under the invalidated rule. zyxw wxyz 24. In Union of India v. Narendra Singh this Court considered the age of the employee who was erroneously promoted and the duration of his service on the promoted post and the factor of retiring from service on attaining the age of superannuation and observed as follows: zyxw wxyz ..35. The last prayer on behalf of the respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so that only few days have remained. The last prayer on behalf of the respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so that only few days have remained. He will be reaching the age of superannuation by the end of this month i.e. 31-12- 2007. In our view, therefore, it would not be appropriate now to revert the respondent to the post of Accountant for very short period. We, therefore, direct the appellants to continue the respondent as Senior Accountant (Functional) till he reaches the age of superannuation i.e. up to 31-12-2007. At the same time, we hold that since the action of the authorities was in accordance with statutory rules, an order passed by the Deputy Accountant General cancelling promotion of the respondent and reverting him to his substantive post of Accountant was legal and valid and the respondent could not have been promoted as Senior Accountant, he would be deemed to have retired as Accountant and not as Senior Accountant (Functional) and his pensionary and retiral benefits would be fixed accordingly by treating him as Accountant all throughout. zyxw wxyz 36. For the foregoing reasons, the appeal is partly allowed. Though the respondent is allowed to continue on the post of Senior Accountant (Functional) till he reaches the age of retirement i.e. 31-12-2007 and salary paid to him in that capacity will not be recovered, his retiral benefits will be fixed not as Senior Accountant (Functional) but as Accountant. In the facts and circumstances of case, there shall be no order as to costs." zyxw wxyz 25. This Court in Gujarat State Dy. Executive Engineers'' Assn. v. State of Gujarat although recorded a finding that appointments given under the "wait list" were not in accordance with law but refused to set aside such appointments in view of length of service (five years and more). zyxw wxyz 26. In Buddhi Nath Chaudhary v. Abahi Kumar even though the appointments were held to be improper, this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained experience and observed: zyxw wxyz "6. We have extended equitable considerations to such selected candidates who have worked in the post for a long period ." zyxw wxyz 27. We have extended equitable considerations to such selected candidates who have worked in the post for a long period ." zyxw wxyz 27. Admittedly, in the instant case the error committed by the respondent Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service. zyxw wxyz 28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list. zyxw wxyz 29. Accordingly, we direct the respondent State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation. zyxw wxyz 30. We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment." zyxw 16. Rival submissions advanced by the respective learned counsels for the parties have received due consideration of this Court. 17. From the respective pleadings of the parties, it has remained undisputed that "Arunachal Pradesh State Council for Information Technology and e-Governance" was carved out from "the Arunachal Pradesh State Council for Science and Technology" by an order dated 30.05.2011, vide Order No. DIT/S&T/155/2011, issued by the Chief Secretary, Government of Arunachal Pradesh. At the time of establishment of the Arunachal Pradesh State Council for Information Technology and e-Governance, as above, admittedly, there was no post of Technical Assistant. At the time of establishment of the Arunachal Pradesh State Council for Information Technology and e-Governance, as above, admittedly, there was no post of Technical Assistant. Although there was no sanctioned post of Technical Assistant in the State Council for Information Technology and e-Governance, yet, the State Council for Information Technology and e-Governance issued an advertisement dated 04.11.2011 inviting applications for filling up of 6(six) posts of Technical Assistant along with other posts mentioned in the said advertisement. In pursuance thereof, respondent Nos. 6 to 12 were selected for appointment as Technical Assistant and accordingly, the respondent Nos. 6 to 12 were appointed as Technical Assistant on contract basis for a period of 6(six) months by an order dated 17.11.2011 and 18.11.2011, respectively. The appointments of respondent Nos. 6 to 12, thereafter, came to be extended from time to time on contract basis in the said post even though there was no any sanctioned post of Technical Assistant. 18. While the matter situated thus, the State Council for Information Technology and eGovernance by a notification dated 24.01.2013 was pleased to frame a Recruitment Rule called "the Recruitment Rules for the post(s) of Assistant, 2013" vide notification No. SCITeG/95/2013-14, which Rule included the Recruitment Rule for the post of Technical Assistant. The above Recruitment Rule provided that the Recruitment Rule shall come into force on the date of publication in the Arunachal Pradesh Gazette, which accordingly, was published on 15th February, 2013. 19. Although the Recruitment Rule had been framed, as above, yet, no post(s) of Technical Assistant had yet been created by the State Council for Information Technology and eGovernance. It was only by an order dated 20.01.2015 that 7(seven) posts of Technical Assistant were created by the Chairman, State Council for Information Technology and eGovernance, vide Memo No. DIT/SCITeG/141-2014-15 and thereafter, on the very next day i.e. 21.01.2015 the services of respondent Nos. 6 to 12 were regularised, vide impugned Order No. DIT/SCITeG/141-2012-15, issued by the Chairman, State Council for Information Technology and e-Governance. 20. Regularisation of the services of respondent Nos. 6 to 12 by the impugned order dated 21.01.2015, therefore, have undoubtedly been done by the respondent authorities without issuing a public advertisement. 6 to 12 were regularised, vide impugned Order No. DIT/SCITeG/141-2012-15, issued by the Chairman, State Council for Information Technology and e-Governance. 20. Regularisation of the services of respondent Nos. 6 to 12 by the impugned order dated 21.01.2015, therefore, have undoubtedly been done by the respondent authorities without issuing a public advertisement. As the 7(seven) posts of Technical Assistant were created in the State Council for Information Technology and e-Governance only by an order dated 20.01.2015, it is needless to say that the Council was under an obligation to fill up the newly created post of Technical Assistant in conformity with the Constitutional norms and the related Recruitment Rules. 21. The case projected in the counter-affidavit by the State respondents that 7(seven) posts of Technical Assistant were created by an order dated 20.01.2015, only for the purpose of regularisation of the services of respondent Nos. 6 to 12 in the post of Technical Assistant cannot be accepted, inasmuch as, in the considered view of this Court, no public post can be created by the State keeping in mind any particular individual (or a group of individuals). When the 7(seven) posts of Technical Assistant were created by an order dated 20.01.2015, the Recruitment Rule of the year 2013 was already in force. The respondent authorities, therefore, ought to have filled up the 7(seven) posts of Technical Assistant, in accordance with the related Recruitment Rule as well as in conformity with the Constitutional norms. 22. In view of the above, the impugned regularisation order dated 21.01.2015, issued by the respondent authorities, regularising the services of respondent Nos. 6 to 12 in the post of Technical Assistant must be held to be unconstitutional for having issued the regularisation order in violation of the related Recruitment Rule as well as Constitutional norms of giving equal opportunity to all the eligible candidates to participate in the selection process to be undertaken by the respondent authorities by putting up a public advertisement. The decision rendered by the Hon''ble Supreme Court in Secretary State of Karnataka vs. Umadevi(3) (supra), relied on by the respondent Nos. 6 to 12 itself makes the above position of law clear when it says in paragraph-2 of the judgment as follows: wxyz "2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. 6 to 12 itself makes the above position of law clear when it says in paragraph-2 of the judgment as follows: wxyz "2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated equals. Thus, any public employment has to be in terms of the constitutional scheme." zyxw wxyz Thus, when 7(seven) posts of Technical Assistants were created by the respondent authorities by an order dated 20.01.2015, all qualified and eligible citizens in terms of the Recruitment Rule of 2013 had acquired a fundamental right under Article 14 & 16 of the Constitution of India to participate in the selection process for the posts of newly created Technical Assistant in the State Council for Information Technology and e-Governance, Government of Arunachal Pradesh. The 7(seven) newly created posts of Technical Assistant, therefore, could not have been filled up by the respondent Nos. 6 to 12 without providing an equal opportunity to participate in the selection process to the rest of the eligible and qualified candidates in terms of the Recruitment Rule of 2013. zyxw 23. After having held, as above, that the regularisation of services of the respondent Nos. 6 to 12 as Technical Assistant was not in conformity with the Constitutional scheme of public employment, the contention advanced by the learned counsel for the respondent Nos. 6 to 12 that the respondent Nos. 6 to 12 were not illegal appointees but were only an irregular appointees, inasmuch as, their initial appointment on contract basis were made after due publication of the advertisement; and, therefore, in terms of the ratio laid down in the case of Umadevi(3) (supra) the regularisation of the services of respondent Nos. 6 to 12 by the respondent authorities cannot be held to be illegal, may now be considered. 24. 6 to 12 by the respondent authorities cannot be held to be illegal, may now be considered. 24. On perusal of paragraph-53 of the Umadevi(3) (supra) case, which was a case decided on 10.04.2006, it is noticed that the Hon''ble Supreme Court, , as a onetime measure, had held that if a duly qualified person in duly sanctioned post have been appointed and such appointee had worked for 10(ten) years or more without intervention of the orders of the Court or Tribunal, the services of such irregularly appointed may be regularised as a onetime measure. The process was directed to be set in motion within 6(six) months from the date of the judgment. 25. The ratio laid down in paragraph-15 of the Umadevi(3) (supra) case cannot be understood as a law being laid down for the future irregular appointees. In paragraph-53 of the Umadevi(3) (supra) case, the Hon''ble Supreme Court had clearly held that it was only a one time measure for which the process for regularisation of the irregular appointee was directed to be set in motion within a period of 6(six) months from the date of the judgment, which necessarily means and indicates that the directions given by the Hon''ble Supreme Court as one time measure, therein, was for the irregular appointments made prior to the date of the judgment i.e. 10.04.2006. Even assuming that the ratio laid down in paragraph53 of the Umadevi(3) (Supra) case applies to the future irregular appointments, then also the ratio laid down in the case of Umadevi(3) (supra) would not be of any assistance to the respondent Nos. 6 to 12, inasmuch as, neither the respondent Nos. 6 to 12 were appointed in a duly sanctioned post of Technical Assistant in their initial appointment made, nor the respondent Nos. 6 to 12 have worked for more than 10(ten) years in the post of Technical Assistant. Irregular appointment of a duly qualified person in duly sanctioned vacant post and the 10(ten) years of work, therein, without the intervention of the order of the Court or the Tribunal were the 3(three) prerequisites for regularisation of the irregular appointee as contemplated in paragraph-53 of the Umadevi(3) (supra) case. The respondent Nos. 6 to 12 does not meet the criteria laid down in paragraph-53 of the Umadevi(3) (supra) case. The respondent Nos. 6 to 12 does not meet the criteria laid down in paragraph-53 of the Umadevi(3) (supra) case. wxyz The above observation have been made, notwithstanding the fact that the ratio laid down in paragraph No. 53 of the Umadevi(3) (supra) would not, in any case, be applicable to the irregular appointments made post 10.04.2006, which is the date of the judgment rendered by the Hon''ble Supreme Court in the case of Umadevi(3) (supra). Accordingly, the contention that regularisation of services of the respondent Nos. 6 to 12 in the post of Technical Assistant vide impugned regularisation order dated 21.01.2015, cannot be held to be illegal on the strength of paragraph 53 of the Umadevi(3) (supra) judgment, is unsustainable and the said contention is rejected. zyxw 26. This brings us to the next alternative argument advanced by the learned counsel for the respondent Nos. 6 to 12 that the respondent Nos. 6 to 12 have, by now, rendered more than 8(eight) years of service in the Department and have also crossed the maximum age limit for further appointment in a Government service; therefore, by taking a sympathetic view, the regularisation of services of respondent Nos. 6 to 12 in the post of Technical Assistant may not be set aside at this stage, inasmuch as, the respondent Nos. 6 to 12 have not played any fraud and misrepresented themselves before the respondent authorities. 27. The argument of fraud being not played by the respondent Nos. 6 to 12 may be taken up first for which the learned counsel has also relied on a decision of the Hon''ble Supreme Court reported in (2013) 14 SCC 494 (Vikas Pratap Singh and Ors.), as already referred to, hereinbefore. 28. In Vikas Pratap Singh (supra), the appellants had participated in a recruitment held for filling up the posts of Subedars, Platoon Commanders and Sub Inspectors, in pursuance of an advertisement issued by the Police Headquarters, Chhattisgarh. The appellants, being selected, were undergoing training. In the meanwhile, IGP and respondent Board received complaints in respect of defects/mistakes in several questions of the mains examination papers. Upon re-examination of answer scripts, a revised merit list was published, wherein, appellants'' name did not find place and accordingly, the appellants'' appointments were cancelled by the State. The appellants, being selected, were undergoing training. In the meanwhile, IGP and respondent Board received complaints in respect of defects/mistakes in several questions of the mains examination papers. Upon re-examination of answer scripts, a revised merit list was published, wherein, appellants'' name did not find place and accordingly, the appellants'' appointments were cancelled by the State. It was in that context, the Hon''ble Supreme Court had held that the error committed by the respondent Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresented in being appointed qua the first merit list nor has preparation of the erroneous model answer key or the specious result contributed to them. Accordingly, the Hon''ble Supreme Court held that it would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts if the appellant are ousted from their services. 29. The ratio laid down in Vikas Pratap Singh (supra) would not be of any assistance to the respondent Nos. 6 to 12, inasmuch as, in the instant case, no any recruitment/selection took place after the 7(seven) posts of Technical Assistant was created vide order dated 20.01.2015 by the respondent authorities. On the other hand, the services of the respondent Nos. 6 to 12 as Technical Assistant were regularised by the respondent authorities in the very next day on 21.01.2015 by a stroke of pen in utter disregard of the Recruitment Rule and the Constitutional Schemes of Public employment. It is well settled, when Rules framed under Article 309 of the Constitution of India is in force, no regularisation is permissible in exercise of the executive power of the Government under Article 162 of the Constitution in contravention of the Rule. Accordingly, the impugned regularisation order dated 21.01.2015 cannot be upheld on the strength of the judgment of the Hon''ble Supreme Court in Vikas Pratap Singh (supra) case. 30. The argument of sympathy to be shown to the respondent Nos. 6 to 12 on account of having rendered more than 8(eight) years of service in the Department, having crossed the maximum age limit for further employment with the Government and the economic hardships that would befall on the respondent Nos. 30. The argument of sympathy to be shown to the respondent Nos. 6 to 12 on account of having rendered more than 8(eight) years of service in the Department, having crossed the maximum age limit for further employment with the Government and the economic hardships that would befall on the respondent Nos. 6 to 12, if they are ousted from their services at this stage of life, is well taken. This Court has no reason to be unsympathetic to the respondent Nos. 6 to 12. Having said so, should this Court, exercising jurisdiction under Article 226 of the Constitution of India, decline to interfere with the impugned regularization of services of respondent Nos. 6 to 12 as Technical Assistant, dated 21.01.2015, when a citizen approaches this Court alleging violation of Fundamental Rights under Article 14 and 16 of the Constitution of India. 31. The answer to the above question is to be found in the very decision of the Hon''ble Supreme Court cited by the learned counsel for the respondent Nos. 6 to 12, namely, Umadevi (3) (supra), wherein, in paragraph Nos. 4 and 43, thereof, the Hon''ble Supreme Court has held as follows: wxyz " 4..... Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten." zyxw wxyz "43... Its role as the sentinel and as the guardian of equal rights protection should not be forgotten." zyxw wxyz "43... 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..." (Emphasis is mine) zyxw 32. For the reasons and discussions made, hereinabove, and also in view of the fact that the impugned regularisation of services of the respondent Nos. 6 to 12 in the posts of Technical Assistant by an order dated 21.01.2015 vide Memo No. DIT/SCITeG/141/2014- 15/348-65 issued by the Chairman, State Council for Information Technology and eGovernance, Government of Arunachal Pradesh, is not only in violation of the petitioners'' Fundamental Rights under Article 14 and 16 of the Constitution of India but also in violation of the Fundamental Rights under Article 14 and 16 of the Constitution of India of all other citizens who are not before this Court, but, otherwise, qualified and eligible under the Recruitment Rule of 2013, given an opportunity to participate, should the recruitment be held in compliance of constitutional norms and the Recruitment Rule of 2013, the impugned regularisation order dated 21.01.2015 cannot be sustained and the same is held to be unconstitutional. 33. Likewise, the appointments of respondent Nos. 13 & 14 made on 09.01.2015 by the Chairman, State Council for IT and E-Governance, vide No. SCITeG-67/2012-13 without any recruitment process, who are stated to be still working as Technical Assistant cannot also be sustained in law, and are also held to be illegal and unconstitutional. 34. Accordingly, the impugned order dated 21.01.2015 issued by the Chairman, State Council for Information Technology and e-Governance, Government of Arunachal Pradesh, vide memo No. DIT/SCITeG/141/2014-15/348-65, insofar as it regularises the services of the respondent Nos. 6 to 12 in the posts of Technical Assistant are, hereby, set aside and quashed. 35. The appointments of respondent Nos. 34. Accordingly, the impugned order dated 21.01.2015 issued by the Chairman, State Council for Information Technology and e-Governance, Government of Arunachal Pradesh, vide memo No. DIT/SCITeG/141/2014-15/348-65, insofar as it regularises the services of the respondent Nos. 6 to 12 in the posts of Technical Assistant are, hereby, set aside and quashed. 35. The appointments of respondent Nos. 13 & 14 as Technical Assistant by an order dated 09.01.2015, issued by the Chairman, State Council for IT and E-Governance, vide No. SCITeG-67/2012-13, initially for a period of 6(six) months and the subsequent extensions thereof, are also set aside and quashed, with a further direction to dispense with the services of the respondent Nos. 13 & 14, forthwith. 36. Writ petition stands allowed in terms above, with no order as to costs.