S.B Sinha and Ram Nandan Prasad, JJ.:—This writ application is directed against appointment of respondent Nos. 5 to 8 made by Indira Gandhi Institute of Medical Sciences (respondent No. 1.)

2. The principal points upon which the writ application is based are that the said appointments have been made in violation of the circular which is contained in Annexure-G to the counter affidavit in as much as the constitution of the Selection Committee was illegal as well as on the ground that in terms of Annexure-13 to the supplementary affidavit, the State of Bihar allegedly directed the respondent No. 1 to regularise the services of the petitioner.

3. The fact of the matter is that the petitioner had been working as a Typist on daily wages from the year, 1987. In 1988, some posts of Steno Typist and Stenographer were advertised wherein the minimum qualification prescribed was matriculate or its equivalent and a speed of 80 words per minute in Stenography and 100 words in English and 40 words in Hindi Typing. However, preference was to be given to those persons having knowledge in Hindi Short Hand and Typewriting. The petitioner along with other eligible candidates appeared in the said test but was not selected.

4. By reason of the impugned order, which is contained in Annexure-5 series, the respondent Nos. 5 to 8 were appointed in the said posts by the respondent No. 1.

5. Mr. Mathur, the learned counsel appearing on behalf of the petitioner firstly submitted that the selection committee was inter alia required to be consisting of persons including a nominee of the State Govt. In order to represent the weaker sections which nomination was done by the State of Bihar by virtue of a letter dated 11.8.1989 (Annexure-8). Although the selection committee held its meeting earlier thereto and as such the constitution of Selection Committee being illegal, its acts of recommending the names of res-pondent nos. 5 to 8 for the purpose of appointment in the posts of Stenographer and Steno Typist must also be held to be illegal.

6. Mr. Mathur accordingly contended that in any event, the State of Bihar which exercises a control in respect of management of the respondent No. 1 institution in terms of Section 24 of the Indira Gandhi Medical Institute Act, 1984, having directed the respondent No. 1 to regularise the appointment of employees being on daily wages in terms of Annexure-13, the petitioner should have been appointed in the said post.

7. Mr. I.K Saran, the learned counsel appearing on behalf of the respondent nos. 1 and 2, on the other hand, submitted that in terms of the rules governing appointment in the said institution, all appointments have to be done by open advertisement.

8. The learned counsel further submitted that respondent no. 1 having followed the procedure of appointment by advertising for the post, committed no illegality. It was further pointed out that the petitioner was over age and further as the petitioner could not successfully compete with other candidates, he was found not fit for the appointment in the said post. It was further pointed out that the composition of screening committee and the selection committee was done in accordance with law and Dr. N.N Sinha was designiated as Medical Superintendent by office order dated 22.6.89 which is contained in Annexure-B to the counter affidavit and thus he was eligible to be a member of the selection committee.

9. The respondents aforementioned have also brought on records the answer papers in respect of the petitioner. The answer papers of other persons have also been brought on record.

10. From the proceedings of the meeting of the selection committee whjch is contained in Annexure-F to the said counter affidavit, it appears, the said committee having taken into consideration all aspects of the matter, found the respondent nos. 5 to 8 fit for appointment. From the said minutes, it further appears that the committee consisted of Dr. S.S Ambastha, Project Director of respondent no. 1, Shri Munilal Rajak. Additional Secretary. Health, Dr. N.N Sinha Medical Superintendent and the Administrative Officer.

11. From a perusal of Annexure-7 to the writ application it appears that the selection committee was to be consisting of the aforementioned members. It has been pointed out that Shri Munilal Rajak who represented the State Govt. as an Additional Secretary, was himself a member of the Scheduled Tribe and thus he represented the weaker section of the society. It may be mentioned herein that the State of Bihar nominated him later on for this purpose. It has further been pointed out that the petitioner's claim for appointment was only as a general candidate in which post Shri Nirmal Kumar Jha has been appointed whereas Vijay Kumar belonging to backward classes and Ramdeo Manjhi belonging to the Scheduled Caste have been selected as members of the weaker section.

12. With regard to the second contention raised by Mr. Mathur, Mr. Saran pointed out that the letter of the State Govt. which is contained in Annexure-13 to the supplementary affidavit filed by the petitioner was in relation to the workmen of the Engineering Cell only and it was not in relation to the post held by the petitioner. It has further been pointed out that the respondent No. 1 had already approached the State Govt. for creation of more posts which has not yet been sanctioned by the State Govt. It has further been pointed out that the appointment of the petitioner was done by adopting a back door method and he was appointed on daily wages on an adhoc basis and his appointment was extended for three months from time to time.

13. From a perusal of Rule 7 of Indira Gandhi Medical Institution Rules, 1984 (Annexure 8) it appears that all appointments were to be made by open advertisement and on the basis of merits of the candidates.

14. Rule 8 of the aforementioned Rules provides for constitution of the Establishment Committee in respect of Class III and Class IV posts consisting of the Director or Project Officer, the Superintendent of the Hospital and a representative of the State Govt. only.

15. In Dalpat Apasaheb Solunke v. Dr. B.S Mahajan reported in (1990) 1 SCC 305, the Supreme Court has pointed out that the High Court cannot sit in appeal over the selection made by the selection committee, in as much as the same consisted of experts.

16. In Dr. M.C Gupta v. Dr. Arun Kumar Gupta reported in (1979) 2 SCC 339, it was held as follows:—

“If the recommendations made by the body of experts, keeping in view the relevant rules and regulations, manifest due consideration of all the relevant facts, the Court should be very slow to interfere with such recommendations. (See University of Mysore v. C.D Govinda Rao). In a more comparable situation in State of Bihar v. Dr. Asis Kumar Mukherjee, this Court observed as under, (SCC p. 611, para 21).

Shri Jagdish Swaroop rightly stressed that once the right to appoint belonged to Government the Court could not usurp it merely because it would have chosen a different person as better qualified or given a finer gloss or different construction to the regulation on the score of a set formula that relevant circumstances had been excluded, irrelevant facts had influenced and such like grounds familiarly invented by parties to invoke the extraordinary jurisdiction under Article 226. True, no speaking order need be made while appointing a Government Servant. Speaking in platitudinous terms these propositions may deserve serious reflection. The Administration should not be thwarted in the usual course of making appointments because somehow it displeases judicial relish or the Court does not agree with its estimate of the relative worth of the candidates. Is there violation of fundamental right, illegality or akin error of law which vitiates the appointment.”

With these blurred contours of periphery of jurisdiction under Article 226 to interfere with selections made by an independent body like Public Service Commission not attributed any malafides, assisted by four experts in the field who presumably knew what constituted teaching research experience, what institutions are treated prestigious enough, in which teaching/research experience would be treated valuable. We may examine the rival contentions—.”

17. In view of the aforementioned authoratative pronouncement of the Supreme Court of India, this court cannot substitute its opinion in place of the recommendation of the Selection Committee.

18. The petitioner has not alleged any bias or malafide against any member of the Selection Committee. In fact, as noticed hereinbefore, the respondent No. 1 in its counter affidavit has placed all relevant materials on record of this case including the papers showing the result of test of Short Hand and Typewriting by the petitioner and the other eligible candidates. It is further evident that Shri Rajak was a representative of the State of Bihar and also being a member of Scheduled Caste could represent the weaker section.

19. As a matter of fact, the said Mr. Rajak himself was appointed for the purpose by the State of Bihar in terms of Annexure-8 to the writ application. However, in this case, the petitioner being not a member of the weaker section, it does not lie in his mouth to contend that he was in any way prejudiced by non-inclusion of a member in the Selection Committee for the purpose of looking after the interests of the weaker section.

20. In any event, in the instant case, the petitioner did not challenge the constitution of Selection Board before the members of the Selection Committee and as such he is estopped and precluded from doing so for the first time in this writ application.

21. Reference in this connection may be made to K.R Bopla v. University of Udaipur, reported in 1978 Vol. II S.L.R 200.

22. In any view of the matter, Rule 3 shall prevail over the executive instruction and thus it cannot be said that the constitution of the Selection Committee was illegal.

23. Taking thus, all the facts and circumstances of the case into consideration we are of the opinion that the constitution of Selection Committee cannot be said to be improper or illiegal in as much as the same was done in substantial compliance of the requirement of the Rules.

24. So far as the second contention raised by Shri. Mathur is concerned, from a bare perusal of Annexure-13 to the supplementary affidavit, it would be evident that the direction of the State Govt. to absorb the employees was in relation to those who were working in the Engineering Cell of the respondent No. 1. In any event, it is now well settled by various decisions of the Supreme Court that before the State fills up a post on a permanent basis, it is bound to comply with the requirement of Article 16 of the Constitution of India.

25. Admittedly the petitioner was appointed on daily wages. His appointment was adhoc in nature. It is further admitted that the appointment of the petitioner was extended for a period of three months from time to time.

26. Regularisation of casual employees does not mean that they be permanently employed in the State service irrespective of the fact as to whether their exists any vacancy or not. The word “regularisation” merely contemplates that a casual employee should be brought on monthly scale of pay and be given other benefits which the regular employees have been getting.

27. Reference in this connection may be made to a well-known decision of the Supreme-Court in B.N Nagrajan v. The State of Karnataka, reported in (1979) 4 SCC 507 : A.I.R 1979 Supreme Court page 1676, wherein the Supreme Court held as follows:—

“Orders made by the State Govt. latter on and right up to October, 31, 1961 when the direct recruits were appointed Assistnat Engineers did not improve the position of any of the promotees in any manner. Those orders were either silent on the point of the nature of the tenure of the promotees as Assistant Engineers, or stated in no uncertain terms that the promotees would hold the posts of Assistant Engineers on a temporary or officiating basis. This is why Dr. Chitale and Mr. Sen, learned counsel for promotees, mainly placed their reliance on the two Notifications dated Feb. 27, 1962 and order Ext. D dated October 6, 1962, the combined effect of which was to promote the said 107 officers as Assistant Engineers with effect from November, 1, 1956” on a regular basis”. It was argued that the regularisation of the promotion gave it the colour of permanence and the appointments of the promotees as Assistant Engineers must therefore be deemed to have been made substantively right from November, 1, 1956. The argument however is unacceptable to us for two reasons. Firstly, the words “regular” or regularisation no not connote permanerce. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of the appointments. In this connection reference may with advantage be made to State of Mysore V.S.V Narayanppa and R.N Najundappa V.T Thimmiah. In the former this Court observed.

“Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence”.

“In Najundappa case also the question of regularisation of an appointment arose and this Court dealt with it thus:

Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or it is in violuation of the provisions of the Constitution, illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.

Apart from repelling the contention, that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under Articles 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Requirement Rules were promulgated and could not therefore direct something which would do violence of any of the provisions thereof. Regularisation in the present case, if it meant permanence operative from November, 1, 1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the Rules framed under Article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government as already stated, cannot override rules framed under Article 309 of the Constitution”.

28. So far as permanent absorption of casual employees in the State service is concerned, in our opinion, the same is impermissible in terms of Articles 14 and 16 of the Constitution of India, in absence of statutory provision or a policy decision of the State.

29. Article 16 of the Constitution provides that all citizens of India are entitled to get equal opportunity for the purpose of obtaining employment in State Service.

30. In order to fulfill such a condition, it is necessary to consider the cases of all citizens who are eligible to be appointed. For that purpose, it is not only necessary to call for the names from the employment exchange but the same also requires due advertisement of posts in the newspapers notifying the vacancies and the requisite qualifications therefor, so that all eligible candidates may apply for the said posts.

31. This aspect of the matter has been considered by this Court in various decisions, reference in this connection may be made to Mahender Ram v. Dy. Commissioner Palamau, reported in 1989 B.L.T, 27, wherein this Court held as follows:—

“Heving regard to the Settled position in law, the question that arises forconsideration in the irstant case is as to whether the appointment of the petitioner was such that it could be regularised by the concerned authorities. In my view it is not possible to answer this question in the affirmative. Article 16 of the Constitution guarantees every citizen must have opportunity in matters relating to employment or appointment to any office under the State. Such opportunity must also be equal. This is the Consitution's mandate. If an appointment is made in breach of the provisions of Article 16 of the Constitution, such an appointment is not irregular but is invalid, and, if brought to the notice of a Court, the same must be quashed. In the instant case, the post to which the petitioner was appointed was never advertised. Consequently, no other citizen had an opportunity to apply for appointment to the post. There was therefore, no opportunity for any other citizen to apply for appointment to the post to which the petitioner was appointed. In these circumstances, it was not a case of equality of opportunity but, complete absence of opportunity so far as other citizens were concerned. The only applicant was the petitioner and he could secure the appointment because he individually approached the authorities concerned who, for whatever considerations, appointed him for a temporary period of three months. If the appointment continued only for a period of three months or if it was extended for a longer period, perhaps, the matter could be ignored. But where a person gains entry through the back door and contiuues in service and then by reason of such continuance claims regularisation, the matter has to be viewed in the light of the provisions of Articles 16 of the Constitution. If the appointment itself was void, there can be no question of regularising such an appointment. It is our judicial experience that Articles 16 in this State is observed more in its breach. Appointments are made initially for a temporary period, but, thereafter continued sometimes under specific orders and sometimes without any order being passed. After sometime the appointee claims that by reason of his continuous officiation against a post, he should be regularised. It appears that even the authorities do not realise that regularisation does not mean permanence, since very often it has been urged before us that a person whose appointment has been regularised becomes a permanent employee under the State. Article 16 is breached with such impunity that one cannot possibly ignore the phenomenon. I, therefore come to the conclusion that the appointment of the petitioner being in breach of Article 16 of the Constitution was an invalid appointment which did not confer any legal right on the petitioner. Since the appointment was invalid, it could not be regularised. Since the continuance of the petitioner whose appointment was invalid was itself illegal, the impugned order whereby the appointment was terminated is perfectly valid.

32. This aspect of the matter has also recently been considered by Sikkim High Court reported in 1990 L.I.C page 43 (Bijendra Singh v. State of Sikkim).

33. Reference in this connection may also be made to Udal Kumar Sharma v. Registrar Co-operative Society reported in 1989 P.L.J.R 952 and in Satish Kumar v. The State of Bihar reported in 1989 (2) BLJR 138 : 1990 P.L.J.R 219. Yet more recently a Division Bench of the Court in C.W.J.C No. 2480 of 1988 (R) and other analogous cases disposed of on 5-4-1990 took the same view. In that case, this Court also relied upon a Supreme Court decision in University of Kashmir v. Dr. Md. Yasin reported in 1974 S.C 238 and in a Full Bench decision of this Court in Rita Mishra v. Director Primary Education reported in 1987 P.L.J.R 1090.

34. The respondent No. 1 in appointing the respondent nos. 5 to 8 has apparently complied with the statutory rules and thus its action must be held to be in consonance with the provisions as contained in Article 16 of the Constitution of India.

35. Rule 7 of the Rules of the respondent no. 1 is a point in that direction. From a plain reading of the said rule we have no doubt in our mind that the same applies to all categories of employees. In any event, as noticed hereinbefore, appointment on a permanent basis can only be done after giving opportunity to all eligible candidates which is possible only when the vacany is notified. There cannot further be any doubt that in order to fulfill the requirements of Article 16 of the Constitution, the appointments have to be made strictly on merits of the candidates.

36. It is true that ad-hocism should come to an and. However the same dees not mean that the persons who have obtained employment by taking recourse to back door method may be permitted to be permanently absorbed only because they have put in work for some time.

37. In such a case as has been held by the Supreme Court in various decisions only relief which can be given by the High Court in exercise of power under Articles 226 of the Constitution of India is to direct the State to consider their cases along with other eligible candidates subject to the condition that the State should relax the age limit of the casual employees.

38. It may be stated at the cost of repetition that in order to fulfill the rigours of Article 16 of the Constitution such employees must also compete with other candidates who have also filed application for appointment in the said posts. In our opinion, in no case, the High Court can permit recruitment against permanent vacancies in violation of Articles 16 of the Constitution of India.

39. In view of the facts and circumstances of this case, no case, for interference has been made out. This writ application is accordingly dismissed.