The Allahabad High Court, in the case of Ram Krishna In 880(Spla)2013 Vs. State of UP Through Secretary Vocational & Technical Education Lucknow & Ors, has noted that a writ petition under Article 226 of the Constitution to regularise an illegal appointment will not stand the test of law.
Appointments to public posts have to be made in accordance with the rules formulated by the competent authority and backdoor entries to public posts cannot be permitted.
It was the case of the appellant, an instructor employed with the UP state government, that he was entitled for regularisation of his service.
However, the appellant did not have the requisite minimum eligibility criteria and experience.
The writ petition for regularisation of service was allowed by the Allahabad High Court. The state preferred an appeal against this judgment and the matter was decided against the appellant. Aggrieved, the appellant filed a review petition.
A bench comprising Justice Sheo Kumar Singh and Justice Shri Narayan Shukla noted that in the exercise of powers under Article 226 of the Constitution, it cannot regularise the services of an employee. It further noted that merely because writ petitions for the regularisation of services have been allowed in the past, the same cannot be a basis to perpetuate an illegality.
“49. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by the Court subject to condition that the appointment was regularized from among the duly qualified persons in duly sanctioned vacant post but the services should be without the intervention of orders of the courts or of tribunals. This is subjected to condition further that State should ensure that regular recruitment are undertaken to fill the vacant sanctioned posts, in cases where temporary employees or daily wagers are being employed. There should be transparency in the public appointment and what has been deprecated by the Court since long time and time again is "backdoor appointments or appointments dehors the rules.”
The court also observed that the practice of employing daily and casual labourers is widespread and subsequently attempts are made to regularise their services. Although, such employment constitutes ‘public employment’, regularisation can only be done in accordance with the rules formulated by the competent authority.
The court further noted that the dates on which vacancies would arise are reasonably foreseeable and, therefore, efforts must be made to fill up the vacancies in advance so that there is no occasion to appoint persons on an ad hoc basis. Supremacy of law and a check against arbitrariness is paramount in a democratic setup.
“51. ...Equality of opportunity in matters of employment being the constitutional mandate has always been observed. The unquestionable authority is always subject to the authority of the Constitution. The higher the dignitary, the more objectivity is expected to be observed. We do not say that powers should be curtailed. What we want to say is that the power can be exercised only to the width of the constitutional and legal limits. The date of retirement of every employee is well known in advance and therefore, the number of vacancies likely to occur in near future in a particular cadre is always known to the employer. Therefore, the exercise to fill up the vacancies at the earliest must start in advance to ensure that the selected person may join immediately after availability of the post, and hence, there may be no occasion to appoint any person on ad hoc basis for the reason that the problem of inducting the daily labourers who are ensured of a regular appointment subsequently has to be avoided and a fair procedure must be adopted giving equal opportunity to everyone.”
The court also observed that the employees do not have a vested right for regularisation of services and the state cannot regularise an illegal appointment. In the instant case, though the appellant worked for a long period of time and had been paid wages, he cannot claim the benefit of regularisation since he did not hold any post.
Read the Judgment here.