Service Matter - Back Door Posting - Temporarily appointed to the post of constable - show cause notice issued and service was also terminated - single judge dismissed the writ - DB allowed the writ - Apex court held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. Learned single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same. =
The respondent was temporarily appointed to the post of constable by
the Inspector General of Police, Criminal Investigation Department, Patna,
Bihar, vide his order dated 14.01.1988 with the stipulation that his
service could be terminated without assigning any reason or show cause. In
the year 2000, the High Court of Patna considered the issue of backdoor
appointments made in the police department in another case which led to a
direction by the Department of Home (Police), Government of Bihar dated
04.09.2000 to the Police Headquarter, Bihar to review irregular
appointments and to remove such appointees from service.
4. Accordingly, a show cause notice dated 10.09.2003 was issued to the
respondent-writ petitioner asking him why his appointment should not be
cancelled and since no valid reason was shown in his reply, order dated
26.09.2003 was passed terminating the services of the respondent.=
Therefore, it is a settled legal proposition that no person can be
appointed even on a temporary or ad hoc basis without inviting applications
from all eligible candidates. If any appointment is made by merely inviting
names from the employment exchange or putting a note on the notice board
etc. that will not meet the requirement of Articles 14 and 16 of the
Constitution. Such a course violates the mandates of Articles 14 and 16 of
the Constitution of India as it deprives the candidates who are eligible
for the post, from being considered. A person employed in violation of
these provisions is not entitled to any relief including salary. For a
valid and legal appointment mandatory compliance with the said
constitutional requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such appointment be made by an
open advertisement as to enable all eligible persons to compete on merit.”
Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the respondent is
not protected and could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division Bench erred in
interfering with the same.
17. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No. 945
of 2010 and restore the order dated 09.04.2010 passed by the learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._7392___2014
(Arising out of SLP (C) No.28971 of 2013)
State of Bihar and Ors. ... Appellant (s)
Versus
Chandreshwar Pathak ... Respondent (s)
J U D G M E N T
Adarsh Kumar Goel, J.
1. Leave granted.
2. This appeal has been preferred by the State of Bihar against the
order dated 05.01.2012 of the Division Bench of the High Court of
Judicature at Patna in L.P.A. No.945 of 2010, which has the effect of
quashing the order dated 26.09.2003 passed by the of Criminal Investigation
Department, Patna, Bihar, terminating the services of the respondent
herein.
3. The respondent was temporarily appointed to the post of constable by
the Inspector General of Police, Criminal Investigation Department, Patna,
Bihar, vide his order dated 14.01.1988 with the stipulation that his
service could be terminated without assigning any reason or show cause. In
the year 2000, the High Court of Patna considered the issue of backdoor
appointments made in the police department in another case which led to a
direction by the Department of Home (Police), Government of Bihar dated
04.09.2000 to the Police Headquarter, Bihar to review irregular
appointments and to remove such appointees from service.
4. Accordingly, a show cause notice dated 10.09.2003 was issued to the
respondent-writ petitioner asking him why his appointment should not be
cancelled and since no valid reason was shown in his reply, order dated
26.09.2003 was passed terminating the services of the respondent.
5. Challenging the above order, the respondent herein preferred a writ
petition before the High Court of Patna which was heard by a learned single
Judge. By order dated 09.04.2010, the learned single Judge dismissed the
writ petition with the following observations:
“This Court is not satisfied that the petitioner has made out a case for
interference with the order of termination from what appears to be an
illegal appointment based on the spoils systems.
Apart from the illegal entry into services, the alleged regularisation is
of no avail to him as it is apparently a single case considered without
others to dole out an individual benefit.
The submission that he had served for 16 long years and, therefore, his
case should be considered sympathetically does not appeal to this Court.
The petitioner must perish by the same sword by which he came.
Reliance of the petitioner on an order of this Court in C.W.J.C. No.
5279/04 interfering with a similar order of termination on the ground that
it had been passed after 15 years is best answered by the judgment of the
Supreme Court in (2005) 4 SSC 209 (Bind Kumar Gupta vs. Ram Ashray Mahato &
Ors.) where the Supreme Court declined to interfere with an order of
termination passed after 15 years of service, in case of an illegal
appointment.”
However, on appeal, the Division Bench allowed the writ petition following
an earlier order dated 18.05.2005 in another case, i.e., C.W.J.C. No. 5279
of 2004 filed by one of the similarly placed employee.
6. We have heard Mr. Gopal Singh, learned counsel for the State of Bihar
and Mr. Manoj R. Sinha, learned counsel for the respondent.
7. Learned counsel for the appellant submitted that the Division Bench
erroneously followed the judgment in C.W.J.C. No. 5279 of 2004 which was
distinguishable as therein no show cause notice was issued while in the
present case, a show cause notice was duly issued to the respondent.
Referring to the order of appointment, it was submitted that the present
was a case of backdoor appointment without any advertisement or selection
process. It was also pointed out that another Division Bench of the same
High Court in Hemkant Jha etc. etc. vs. The State of Bihar & Ors. (L.P.A.
No. 625 of 2003 etc.etc. decided on 18.7.2007) dealt with a group of
identical matters, on remand by this Court, and upheld termination of
services of police constables appointed without any selection. Therein, it
was observed:
“6. On going through the impugned judgments, the relevant facts and the
judgment in the case of Sudhir Kumar, it is found that on facts, there is
no meaningful and serious challenge to the relevant facts that concerned
employees in these matters have been appointed on the post of Constable
without any advertisement and without following procedure of appointment.
No general or order or regulation of the State Government is available to
support the contention that appointment of the appellants is akin to
compassionate appointment for which the State Government has taken a policy
decision and prescribed rules. In facts, there is no controversy or issue
in these matters because on admitted facts it is clear that the appointment
of the appellants on the post of Constable were made through a backdoor
method in complete disregard of procedure for appointment laid down in
relevant rules in the Police Manual and in violation of constitutional
mandate of equality in public employment. The State has rightly relied
upon various judgments including that of a Constitution Bench of the Apex
Court in the case of Secretary, State of Karnataka vs. Uma Devi (3),
reported in (2006) 4 SCC 1, to submit that such appointments do not confer
any right on the appointees and in such cases of appointments made without
following due process as per mandate of the Constitution or the relevant
rules for appointment, the Court cannot direct for grant of benefits like
absorption, regularisation or re-engagement. Those principles, though
considered in that case in the context of absorption, regularization, will
apply with equal force where such illegal appointment has been terminated
and the Court is called upon to consider such order and the connected issue
of ordering for reinstatement, i.e., for continuation of such illegal
appointments. That Constitution Bench judgment has emphasized the relevant
aspects in paragraphs 33 and 39 and in paragraph 54 it has been clarified
that those decisions which run counter to the principles settled in that
decision, or in which directions run counter to that decision, will stand
denuded of their status as precedents. The same principle of law flows
from a Division Bench judgment of this Court in the case of Amrendra Singh
vs. State of Bihar, 1999 (3) PLJR 984.
7. Having found that the appellants employees concerned are backdoor
appointees as held by the learned Judges in the impugned orders and they
have no right to their posts, we are now required to consider the
submissions advanced on behalf of the appellants that the impugned orders
should be set aside because the termination orders were issued by the
various Superintendent of Police not of their own free will but rather
under the directions of the higher authorities including the State
Government and that principles of natural justice were not within relation
to some of the petitioners/appellants.
8. The submissions noticed above must be decided in the background of
facts of each case. In the present case, the facts noticed in brief
disclose that large scale backdoor appointments were detected to have been
made during the tenure of a particular Director General of Police. An
enquiry was held and thereafter as a result of such enquiry directions were
issued by the higher authorities to the Superintendents of Police, the
competent authority to make appointments to the post of Constable, to issue
show cause notices wherever such backdoor appointments were detected and to
take action for their termination. The issue is whether the State
Government and the successor-Director General of Police could have held
such enquiry and issued such directions or not. In order to ensure rule of
law and obedience to constitutional mandate governing public employment,
the State and its officials must be held duty bound to take such steps and
there is no legal infirmity in such action.”
8. It has been pointed out that S.L.P.(c) Nos. 1237-1240 of 2008
etc.etc. and S.L.P.(c) Nos. 3334-3337 of 2008 filed against the above
judgment were dismissed by this Court on 04.02.2008 and 04.04.2008
respectively and on that basis S.L.P.(c) No. 21543 of 2008 was also
dismissed by this Court on 04.09.2013 in a connected matter.
9. Learned counsel for the respondent supported the impugned order and
submitted that having regard to the fact that the respondent had already
served for 15 years, termination of his services was not called for.
10. The only question for consideration is whether the appointment of the
respondent made without any advertisement or selection process can be
considered to be a valid appointment to a public post protected under
Articles 14 or 311 of the Constitution of India?
11. On due consideration, we are of the view that the impugned judgment
cannot be sustained for the reasons that follow.
12. The order of appointment, in the present case, is as follows:
“In the light of the order passed by the Inspector General of Police,
Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86
F3 Sh. Chandeshwar Pathak, s/o Sh. Devnarayam Pathak of Village Haraji,
P.O. Haraji, PS- Dimbara, District- Chhapra was appointed as Constable
temporarily from 14.01.1988 afternoon on the condition that his previous
character found satisfactory and as and when necessary, his service shall
be terminated without assigning any reason or show cause. His pay scale
shall be Rs.425-10565 EB-10-605 with the basic pay of Rs.425/-. He has
been allotted the CT No. 390.”
13. It is clear from the above order that the appointment has been given
only on the asking of the Inspector General of Police. There is nothing to
show that any advertisement was issued giving opportunity to all eligible
candidates to compete or any selection process was undertaken before
appointment of the respondent.
14. In State of Orissa & Anr. vs. Mamata Mohanty (2011) 3 SCC 436, it
was observed as under:
“APPOINTMENT / EMPLOYMENT WITHOUT ADVERTISEMENT:
35. At one time this Court had been of the view that calling the names
from employment exchange would curb to certain extent the menace of
nepotism and corruption in public employment. But, later on, came to the
conclusion that some appropriate method consistent with the requirements of
Article 16 should be followed. In other words there must be a notice
published in the appropriate manner calling for applications and all those
who apply in response thereto should be considered fairly. Even if the
names of candidates are requisitioned from employment exchange, in addition
thereto it is mandatory on the part of the employer to invite applications
from all eligible candidates from the open market by advertising the
vacancies in newspapers having wide circulation or by announcement in radio
and television as merely calling the names from the employment exchange
does not meet the requirement of the said article of the Constitution.
(Vide: Delhi Development Horticulture Employees' Union v. Delhi Admn.,
State of Haryana v. Piara Singh, Excise Supdt. v. K.B.N. Visweshwara
Rao, Arun Tewari. v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram
Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Telecom District
Manager v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State
of M.P. v. Mohd. Ibrahim).
36. Therefore, it is a settled legal proposition that no person can be
appointed even on a temporary or ad hoc basis without inviting applications
from all eligible candidates. If any appointment is made by merely inviting
names from the employment exchange or putting a note on the notice board
etc. that will not meet the requirement of Articles 14 and 16 of the
Constitution. Such a course violates the mandates of Articles 14 and 16 of
the Constitution of India as it deprives the candidates who are eligible
for the post, from being considered. A person employed in violation of
these provisions is not entitled to any relief including salary. For a
valid and legal appointment mandatory compliance with the said
constitutional requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such appointment be made by an
open advertisement as to enable all eligible persons to compete on merit.”
15. No contrary view of this Court has been cited on behalf of the
respondent. Moreover, another Division Bench of the same High Court has
upheld termination in similar matter as noted earlier against which S.L.P.
has been dismissed by this Court as mentioned earlier.
16. Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the respondent is
not protected and could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division Bench erred in
interfering with the same.
17. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No. 945
of 2010 and restore the order dated 09.04.2010 passed by the learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.
18. There shall be no order as to costs.
.............................................J.
[ T.S. THAKUR ]
.............................................J.
[ ADARSH KUMAR GOEL ]
New Delhi
August 07, 2014
The respondent was temporarily appointed to the post of constable by
the Inspector General of Police, Criminal Investigation Department, Patna,
Bihar, vide his order dated 14.01.1988 with the stipulation that his
service could be terminated without assigning any reason or show cause. In
the year 2000, the High Court of Patna considered the issue of backdoor
appointments made in the police department in another case which led to a
direction by the Department of Home (Police), Government of Bihar dated
04.09.2000 to the Police Headquarter, Bihar to review irregular
appointments and to remove such appointees from service.
4. Accordingly, a show cause notice dated 10.09.2003 was issued to the
respondent-writ petitioner asking him why his appointment should not be
cancelled and since no valid reason was shown in his reply, order dated
26.09.2003 was passed terminating the services of the respondent.=
Therefore, it is a settled legal proposition that no person can be
appointed even on a temporary or ad hoc basis without inviting applications
from all eligible candidates. If any appointment is made by merely inviting
names from the employment exchange or putting a note on the notice board
etc. that will not meet the requirement of Articles 14 and 16 of the
Constitution. Such a course violates the mandates of Articles 14 and 16 of
the Constitution of India as it deprives the candidates who are eligible
for the post, from being considered. A person employed in violation of
these provisions is not entitled to any relief including salary. For a
valid and legal appointment mandatory compliance with the said
constitutional requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such appointment be made by an
open advertisement as to enable all eligible persons to compete on merit.”
Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the respondent is
not protected and could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division Bench erred in
interfering with the same.
17. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No. 945
of 2010 and restore the order dated 09.04.2010 passed by the learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.
2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41813
REPORTABLEIN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._7392___2014
(Arising out of SLP (C) No.28971 of 2013)
State of Bihar and Ors. ... Appellant (s)
Versus
Chandreshwar Pathak ... Respondent (s)
J U D G M E N T
Adarsh Kumar Goel, J.
1. Leave granted.
2. This appeal has been preferred by the State of Bihar against the
order dated 05.01.2012 of the Division Bench of the High Court of
Judicature at Patna in L.P.A. No.945 of 2010, which has the effect of
quashing the order dated 26.09.2003 passed by the of Criminal Investigation
Department, Patna, Bihar, terminating the services of the respondent
herein.
3. The respondent was temporarily appointed to the post of constable by
the Inspector General of Police, Criminal Investigation Department, Patna,
Bihar, vide his order dated 14.01.1988 with the stipulation that his
service could be terminated without assigning any reason or show cause. In
the year 2000, the High Court of Patna considered the issue of backdoor
appointments made in the police department in another case which led to a
direction by the Department of Home (Police), Government of Bihar dated
04.09.2000 to the Police Headquarter, Bihar to review irregular
appointments and to remove such appointees from service.
4. Accordingly, a show cause notice dated 10.09.2003 was issued to the
respondent-writ petitioner asking him why his appointment should not be
cancelled and since no valid reason was shown in his reply, order dated
26.09.2003 was passed terminating the services of the respondent.
5. Challenging the above order, the respondent herein preferred a writ
petition before the High Court of Patna which was heard by a learned single
Judge. By order dated 09.04.2010, the learned single Judge dismissed the
writ petition with the following observations:
“This Court is not satisfied that the petitioner has made out a case for
interference with the order of termination from what appears to be an
illegal appointment based on the spoils systems.
Apart from the illegal entry into services, the alleged regularisation is
of no avail to him as it is apparently a single case considered without
others to dole out an individual benefit.
The submission that he had served for 16 long years and, therefore, his
case should be considered sympathetically does not appeal to this Court.
The petitioner must perish by the same sword by which he came.
Reliance of the petitioner on an order of this Court in C.W.J.C. No.
5279/04 interfering with a similar order of termination on the ground that
it had been passed after 15 years is best answered by the judgment of the
Supreme Court in (2005) 4 SSC 209 (Bind Kumar Gupta vs. Ram Ashray Mahato &
Ors.) where the Supreme Court declined to interfere with an order of
termination passed after 15 years of service, in case of an illegal
appointment.”
However, on appeal, the Division Bench allowed the writ petition following
an earlier order dated 18.05.2005 in another case, i.e., C.W.J.C. No. 5279
of 2004 filed by one of the similarly placed employee.
6. We have heard Mr. Gopal Singh, learned counsel for the State of Bihar
and Mr. Manoj R. Sinha, learned counsel for the respondent.
7. Learned counsel for the appellant submitted that the Division Bench
erroneously followed the judgment in C.W.J.C. No. 5279 of 2004 which was
distinguishable as therein no show cause notice was issued while in the
present case, a show cause notice was duly issued to the respondent.
Referring to the order of appointment, it was submitted that the present
was a case of backdoor appointment without any advertisement or selection
process. It was also pointed out that another Division Bench of the same
High Court in Hemkant Jha etc. etc. vs. The State of Bihar & Ors. (L.P.A.
No. 625 of 2003 etc.etc. decided on 18.7.2007) dealt with a group of
identical matters, on remand by this Court, and upheld termination of
services of police constables appointed without any selection. Therein, it
was observed:
“6. On going through the impugned judgments, the relevant facts and the
judgment in the case of Sudhir Kumar, it is found that on facts, there is
no meaningful and serious challenge to the relevant facts that concerned
employees in these matters have been appointed on the post of Constable
without any advertisement and without following procedure of appointment.
No general or order or regulation of the State Government is available to
support the contention that appointment of the appellants is akin to
compassionate appointment for which the State Government has taken a policy
decision and prescribed rules. In facts, there is no controversy or issue
in these matters because on admitted facts it is clear that the appointment
of the appellants on the post of Constable were made through a backdoor
method in complete disregard of procedure for appointment laid down in
relevant rules in the Police Manual and in violation of constitutional
mandate of equality in public employment. The State has rightly relied
upon various judgments including that of a Constitution Bench of the Apex
Court in the case of Secretary, State of Karnataka vs. Uma Devi (3),
reported in (2006) 4 SCC 1, to submit that such appointments do not confer
any right on the appointees and in such cases of appointments made without
following due process as per mandate of the Constitution or the relevant
rules for appointment, the Court cannot direct for grant of benefits like
absorption, regularisation or re-engagement. Those principles, though
considered in that case in the context of absorption, regularization, will
apply with equal force where such illegal appointment has been terminated
and the Court is called upon to consider such order and the connected issue
of ordering for reinstatement, i.e., for continuation of such illegal
appointments. That Constitution Bench judgment has emphasized the relevant
aspects in paragraphs 33 and 39 and in paragraph 54 it has been clarified
that those decisions which run counter to the principles settled in that
decision, or in which directions run counter to that decision, will stand
denuded of their status as precedents. The same principle of law flows
from a Division Bench judgment of this Court in the case of Amrendra Singh
vs. State of Bihar, 1999 (3) PLJR 984.
7. Having found that the appellants employees concerned are backdoor
appointees as held by the learned Judges in the impugned orders and they
have no right to their posts, we are now required to consider the
submissions advanced on behalf of the appellants that the impugned orders
should be set aside because the termination orders were issued by the
various Superintendent of Police not of their own free will but rather
under the directions of the higher authorities including the State
Government and that principles of natural justice were not within relation
to some of the petitioners/appellants.
8. The submissions noticed above must be decided in the background of
facts of each case. In the present case, the facts noticed in brief
disclose that large scale backdoor appointments were detected to have been
made during the tenure of a particular Director General of Police. An
enquiry was held and thereafter as a result of such enquiry directions were
issued by the higher authorities to the Superintendents of Police, the
competent authority to make appointments to the post of Constable, to issue
show cause notices wherever such backdoor appointments were detected and to
take action for their termination. The issue is whether the State
Government and the successor-Director General of Police could have held
such enquiry and issued such directions or not. In order to ensure rule of
law and obedience to constitutional mandate governing public employment,
the State and its officials must be held duty bound to take such steps and
there is no legal infirmity in such action.”
8. It has been pointed out that S.L.P.(c) Nos. 1237-1240 of 2008
etc.etc. and S.L.P.(c) Nos. 3334-3337 of 2008 filed against the above
judgment were dismissed by this Court on 04.02.2008 and 04.04.2008
respectively and on that basis S.L.P.(c) No. 21543 of 2008 was also
dismissed by this Court on 04.09.2013 in a connected matter.
9. Learned counsel for the respondent supported the impugned order and
submitted that having regard to the fact that the respondent had already
served for 15 years, termination of his services was not called for.
10. The only question for consideration is whether the appointment of the
respondent made without any advertisement or selection process can be
considered to be a valid appointment to a public post protected under
Articles 14 or 311 of the Constitution of India?
11. On due consideration, we are of the view that the impugned judgment
cannot be sustained for the reasons that follow.
12. The order of appointment, in the present case, is as follows:
“In the light of the order passed by the Inspector General of Police,
Criminal Investigation Department, Bihar, Patna, vide his Letter No. 6/86
F3 Sh. Chandeshwar Pathak, s/o Sh. Devnarayam Pathak of Village Haraji,
P.O. Haraji, PS- Dimbara, District- Chhapra was appointed as Constable
temporarily from 14.01.1988 afternoon on the condition that his previous
character found satisfactory and as and when necessary, his service shall
be terminated without assigning any reason or show cause. His pay scale
shall be Rs.425-10565 EB-10-605 with the basic pay of Rs.425/-. He has
been allotted the CT No. 390.”
13. It is clear from the above order that the appointment has been given
only on the asking of the Inspector General of Police. There is nothing to
show that any advertisement was issued giving opportunity to all eligible
candidates to compete or any selection process was undertaken before
appointment of the respondent.
14. In State of Orissa & Anr. vs. Mamata Mohanty (2011) 3 SCC 436, it
was observed as under:
“APPOINTMENT / EMPLOYMENT WITHOUT ADVERTISEMENT:
35. At one time this Court had been of the view that calling the names
from employment exchange would curb to certain extent the menace of
nepotism and corruption in public employment. But, later on, came to the
conclusion that some appropriate method consistent with the requirements of
Article 16 should be followed. In other words there must be a notice
published in the appropriate manner calling for applications and all those
who apply in response thereto should be considered fairly. Even if the
names of candidates are requisitioned from employment exchange, in addition
thereto it is mandatory on the part of the employer to invite applications
from all eligible candidates from the open market by advertising the
vacancies in newspapers having wide circulation or by announcement in radio
and television as merely calling the names from the employment exchange
does not meet the requirement of the said article of the Constitution.
(Vide: Delhi Development Horticulture Employees' Union v. Delhi Admn.,
State of Haryana v. Piara Singh, Excise Supdt. v. K.B.N. Visweshwara
Rao, Arun Tewari. v. Zila Mansavi Shikshak Sangh, Binod Kumar Gupta v. Ram
Ashray Mahoto, National Fertilizers Ltd. v. Somvir Singh, Telecom District
Manager v. Keshab Deb, State of Bihar v. Upendra Narayan Singh and State
of M.P. v. Mohd. Ibrahim).
36. Therefore, it is a settled legal proposition that no person can be
appointed even on a temporary or ad hoc basis without inviting applications
from all eligible candidates. If any appointment is made by merely inviting
names from the employment exchange or putting a note on the notice board
etc. that will not meet the requirement of Articles 14 and 16 of the
Constitution. Such a course violates the mandates of Articles 14 and 16 of
the Constitution of India as it deprives the candidates who are eligible
for the post, from being considered. A person employed in violation of
these provisions is not entitled to any relief including salary. For a
valid and legal appointment mandatory compliance with the said
constitutional requirement is to be fulfilled. The equality clause
enshrined in Article 16 requires that every such appointment be made by an
open advertisement as to enable all eligible persons to compete on merit.”
15. No contrary view of this Court has been cited on behalf of the
respondent. Moreover, another Division Bench of the same High Court has
upheld termination in similar matter as noted earlier against which S.L.P.
has been dismissed by this Court as mentioned earlier.
16. Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the respondent is
not protected and could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division Bench erred in
interfering with the same.
17. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No. 945
of 2010 and restore the order dated 09.04.2010 passed by the learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.
18. There shall be no order as to costs.
.............................................J.
[ T.S. THAKUR ]
.............................................J.
[ ADARSH KUMAR GOEL ]
New Delhi
August 07, 2014
