Sitaram Thakur v. State Of Bihar

S.B.Sinha, J:-

(1) This writ petition is directed against the officer order contained in memo no. 1r98 dated 20 - 8 - 1992 whereby in terms of a decision held in the meeting dated 22nd june, of 1992 the services (sic) of the petitioner had been terminated.

(2) The fact of the matter lies in a very narrow compass.

(3) The petitioner was engaged as a ivth grade employee on daily wages in march, 1983 he. Thereafter was appointed on a temporary basis as a peon by the district education officer patna in terms of memo no. 865 dated 7 - 4 - 1990 and was posted in rauzdar singh high school, athmalgola.

(4) The petitioner was later on deputed to the office of the district education officer, patna. He thereafter was transferred to a nationalised high school situated at paliganj in the district of patna. He was again deputed to the office of the district education officer, patna,

(5) By reason of the impugned order dated 20th august, 1992 the services of the petitioner had been terminated pursuant to the decision taken in the meeting of the officers of the education department held on 22nd of june, 1992. The said order is contained in annexure - 6 to the writ application,

(6) According to the petitioner, he having been appointed on a regular basis, clause 3 of the minutes of the meeting as contained in annexure - 3 thereto has no application in his case.

(7) Mr. Ganesh prasad singh, learned counsel appearing on behalf of the petitioner has submitted that the procedures laid down in the circulars issued by the personnel and administrative department cannot have any application whatsoever and in any event as the petitioner had been working on daily wages since 1983, the petitioner's services have to be regularised, 7. From a perusal of the offer of appointment issued to the petitioner by reason of memo no, 865 dated 6 - 4 - 1990 as contained in annexure - 1 to the writ application, it appears that the petitioner was appointed on a temporary basis by the district education officer in fauzdar singh high school athmalgola.

(8) The petitioner was, therefore, evidently appointed in nationalised high school by the district education officer. It is also evident that prior to the said appointment, neither any advertisement was issued nor the employment exchange was notified further as would be noticed hereinbefore, even the provisions of statutory rules were not followed.

(9) The state of bihar in exercise of its power conferred upon it under the bihar non - government secondary schools (taking over of management and control act) has framed rules known as bihar nationalised secondary school (service conditions) rules, 1983. The said rules were amended in the year 1988. The aforementioned 1983 rules inter alia provide for the procedure for appointment of teaching and non - teaching staff in the nationalised schools.

(10) The vires of the said 1983 rules was considered by a full bench of this court in ram ordar ojha v, the state of bihar, reported in 1992 (i) pljr 722, and it has been held therein that the said rules are intra - vires. Mr. Ganesh prasad singh, learned counsel appearing on behalf of the petitioner has relied upon an unreported decision of this court in madan girl and others v. Union of india and others reported in cwjc no. 2870 of 1980, disposed of on 23rd january, 1981 and a recent decision of the supreme court in state of haryana and others v. Piara singh and others reported in jt 1992 (6) sc 179. The learned counsel further submitted that in any event in the facts and circumstances of the case the principles of natural justice has to be complied with.

(11) The appointment of the petitioner thus being governed by the statutory rules, the provisions thereof could not have been totally ignored by the authorities of the state of bihar in the matter of his appointment.

(12) In terms of the aforementioned rules, appointment to a class iv posts has to be made bv a committee as is evident from sub - rule (2) of rule 8 thereof the said rules further provide that while making appointment of class iv employees, the procedures laid down in circular letter no 1466 dated 4 - 11 - 1980 issued by the personnel and administrative department in the matter of appointment has to be followed, in terms whereof infer alia a panel has to be prepared at the district level upon following the procedures laid down therein the appointing authority in terms of the aforementioned rules is the headmaster of the concerned school and not the district education officer. There cannot therefore be any doubt that the petitioner's appointment being wholly illegal, she did not derive any legal right to continue in the said posts.

(13) In madan girl's case (supra) a division bench of this court observed : -

"i must point out that an order of cancellation stands on a footing different from that of an order of termination of service. And, it is well settled that if an order of appointment is cancelled on the ground that the appointment was irregular, the principles of natural justice have to be complied with by giving the persons, whose appointment is being cancelled, an opportunity of showing cause against the said order."

(14) Evidently, therefore, in that case the appointment of the petitioner thereof was sought to be cancelled on the ground that the same was irregular however, in this case, as noticed hereinbefore, the appointment of the petitioner is not only illegal but the same is nullity having been made in violation of the provisions of the statutory rules and by a person who had no jurisdiction in this regard.

(15) In raj kishore kumar sinha v. State of bihar, reported in 1992 (2) pljr 625, upon which also a strong reliance has been placed by mr. Singh, the full bench did not decide any question whatsoever. No reason has also been assigned by the full bench nor did it consider the effect of various other supreme court decision. In that case the full bench itself held : -

"it is not necessary for us to go into the larger issue as to whether the principle of natural justice would apply where the intial appointment has been made in violation of article 16 of the constitution of india for the simple reason that in the present upto now there has been no formal order of termination of service."

(16) It is relevant to note that recently s. N jha, j. Speaking for the division bench in teja praaad v. State of bihar reported in 1992 (2) pljr 56, has held that the principles of natural justice are not required to be complied with when the appointment had been made in violation of the provisions of the statute, although his lordship was a party to the full bench in raj - kishore sinha's case.

(17) In m. L. Gupta v. Instrumentation ltd and others reported in 1992 (1) pljr 137, upon taking into consideration various decisions of the supreme court and this court it has been held : - "article 6 of the constitution of india provides that all citizens of india are entitled to get equal opportunity for the purpose of obtaining employment in state service.

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

It was further observed :

"from the decisions of the supreme court as also of this court, as referred to hereinbefore, it will thus be evident that any appointment which was made by a person having no authority to do so or the appointments which have not been made following the mandatory provisions of the recruitment rules and articles 14 and 16 of the constitution, such appointments should be held to be a nullity in this view of the matter, in my opinion, this court in exercise of its writ jurisdiction cannot direct regularisa - tion of the services of the employees when the same would be violative of articles 14 and 16 of the constitution."

(18) The principles of natural justice as is well known is based upon two basic principles, viz. Audi alteram partem and nemo debito esses judex in propriea causa. The principles of natural justice have been developed by the appex court from time to time adding new concepts therein. In some decisions the appex court has gone to the extent of holding that the principles of natural justice are embodied in article 14 of the constitution of india.

(19) In union of india v. Tulsi ram patel, reported in air 1985 sc 1416, the supreme court of india held : -

"principles of natural justice are not creation of article 14 of the constitution of india but merely they are constitutional guardian the principles of natural justice can be traced their anestry to ancient civilizations and long past history."

(20) The supreme court in that case traced the history of the principle of natural justice in paragraphs 72 to 80 of the judgment and thereafter, discussed vaiious principles involved therein in paragraphs 81 to 83, thereof. The supreme court thereafter proceeded to consider the question as to how the said provisions have been interpreted by the court. The supreme court held : - ''the principles of natural justice have thus come to be recognised as being a part of the guarantee contained in article 14 because of the new and dynamic intertretation given by this court to the concept of equality which is the subject - matter of that article.

"shortly, put the syllogism runs thus : violation of a rule of natural justice results in arbitrariness which is the same as discrimination where discrimination is there result of state action, it is a violation of article 14 article 14, however is not the sole repository of the principles of natural justices, what it does is to guarantee that any law or state action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and state action but also where any tribunal authority or body of men not coming within the definition of state" in article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially. "

(21) In tulsi ram patel case (supra) the supreme court thereafter held that a statutory provision either specifically or by necessary implication may exclude any application of the principles of natural justice. The supreme court therefore, concluded that the principles of natural justice not only can be modified but also it can be excluded.

(22) In union of india v. J, n. Sinha, reported in air 1971 sc 40, it has been held : -

"but if on the other hand, a statutory provision either specific or by necessary implication excluded the application of any or all the rules of principle of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferred the power, the nature of the power conferred, the purposes for which it is conferred, and the effect of exercise of that power."

(23) Reference in this condition may also be made to r. S. Das v. Union of india, reported in air 1987 sc 593.

(24) Further, it is well known that there are certain exceptions to the principles of natural justice. In case of maharashtra state board of secondary and higher secondary education v. K. S. Gandhi and others reported in 1991 (2) scc 716, it has been held : - -

"from this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice. The omnipresence and omniscience of the principles of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play. But the applicability of the principles of natural justice is not a rule of thumb or a strait - jacket formula as an abstract proposition of law. It depends on the facts of the case, nature of the inquiry and the effect of the order decision on the rights of the person and attendent circumstances."

(25) In national institute of mental health and neuro sciences v. R. K. Raman, reported in 1992 sc 1806, it has been held that tor selection or on selection of a person in absence of as statutory requirement, the authority is under no legal obligation to record reason in support of its decision and even the principles of natural justice have no application in such a case.

(26) The supreme court in the case of dr. Suresh chandra verma and others v. The chancellor, nagpur university and others, reported in 1990 (4) scc 55r held as follows :

"when, therefore, the services of the appellants are to be terminated in view of the change in the position of law and not on account of the demerits of misdemeanour of individual candidates, it is not necessary to hear the individuals before their services are terminated. The rule of audi alteram partem does not apply in such cases and, therefore, there is no breach of the principles of natural there is no merit in this case the appeal, therefore, stands dismissed. In the circumstances of the case, however, there will be no order as to costs."

(27) It is, therefore, clear that in a case where the services of the employee is terminated owing to any misdemeanour on his part or his demerits, the principles of natural justice are required to be complied with.

(28) Recently, the supreme court in baikuntha nath das and another v. Chief justice medical officer, baripada and another, reported in 1992 (2) scc 299, has held that before passing the order of compulsory retirement principles of natural justice are not required to be complied with nor even adverse remarks against the concerned employee are required to be communicated. The supreme court held :

"before parting with the case, we must refer to an argument urged by sri r. D. Garg. He stressed what is called, the new concept of article 14 as adumbrated in menka gandhi and submitted on that basis that any and every arbitrary action is open to judicial scrutiny. The general principle evolved in the said decision is not in issue here we are concerned mainly with the question whether a facet of principle of natural jusmce audi alteram partem is attracted in the case of compulsory retirement. In other words the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is no quasi - judicial in nature and because the action has to be taken on the subjective satisfaction of the government, there is no room for importing the said fact of natural justice in such a case, more particularly when an order of compulsory retirement, is not a punishment nor does it involve any stigma."

(29) In bijay bharti v. State of bihar reported in 1983 pur 530, full bench of this court held : -

"before considering the argument that the right of some of the petitioners to future appointment has been affected, it would be proper to consider as to what is the effect of saying that the appointment is irregular. Reference in this connection may be made to two cases decided by mathew, j as a judge of the kerala high court, the first case is that of p. Kunhikrishan v. State of kerala (15). There on facts it was found that the petitioner was ineligible for being appointed to the service. The impugned order was, therefore, held to mean that it was a termination of an appointment which was itself void. In o. P. No. 973 of 1978 the same learned judge pointed out that the order in question only declared that the petitioner was not validly appointed to the post and that he should be reverted. The learned judge observed ; -

"it was not an order cancelling a valid or even a voidable order ; it was merely a declaration that there has been no appointment of the petitioner to the post in the circumstances i do not think that natural justice required that the petitioner should have been given an opportunity of being heard by the 1st or the 2nd respondent. I also do not think that in circumstances there was any manifest injustice, so that interference under article 260 required."

In u. P. Junior doctor's action committee v. Dr b. Sheetal nandwani and others reported in 1991 sc 909, it has been held that principles of natural justice are not required to be complied with in a case where a candidate had secured admission on the basis of forged certificate.

(30) It has further been held by the supreme court that natural justice should be viewed in circumstantial flexibility : 1991 (4) scc 584. It is also well known that the principles of natural justice need not be complied with when it would result in futility. It is also a settled law that any appointment made in violation of article 16 of the constitution of india or made by a person having no jurisdiction would be a nullity.

(31) The supreme court in a recent decision in ex. Capt, k. Balasubra - manian and others v. State of tamil nadu and another reported in 1991 (2) scc 708, has held

" -. This high court has. In our opinion rightly held that the directions contained in orders dated 16th june, 1976 and june, 15, 1977 were invalid being contrary to the provisions contained in rule 35 of the general rules. Since the said orders were invalid the petitioners would not claim any right on the basis of said orders and there was, therefore, no question of affording them an opportunity of hearing before passing the order dated 3rd march, 1980."

(32) In ram krishan varma v. State of u. P. Reported in 1992 (2) scc 620, it has been held that a party would not be entitled to his right of natural justice if undue advantage is obtained by protracting a proceeding somehow and nullifying the objective.

(33) In s. L. Kapoor v jagmohan and others, air 1981 sc 136, it has been held that although non - observance of the principles of natural justice is itself prejudicial but in that case also it has been observed :

"linked with this question is the question whether the failure to observe natural j ustice does at all matter of the observance of of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Whereon the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it approved the non - observance of natural justice but because courts do not issue futile writs."

(34) There is another aspect of the matter which also requires consideration. The issuance of writ of certiorari is a discretionary remedy. The court may not issue a writ only because it is lawful to do so. The high court in exercise of its jurisdiction may refuse to exercise its jurisdictiory quashing the illegal order, if it is found that thereby another illegal order snail revive. In such anevent, the court may also quash both the orders.

(35) In pramod kumar and others v. State of bihar and others, 1988 lpjr 923, it has been held as follows : -

"it is now well settled by the various divisions of this court and the supreme court of india that issuance of a writ of certiorari is a discretionary remedy. In this connection reference may be made in the case of godde venkateshwara rao v government of andhra pradesh and others, air 1966 sc 628 : abdul majid and others v the state of transport appellate authority, bihar and others, air 1960 patna 333 ; devendra pd gupta v the state of bihar and others, 1977 bbcj 543 : 1977 pljr 576 ; hari prasad mandal v. Additional collector 1978 bacr 575 : 1978 pljr 636 ; banwari lal newatia v. Under secy, to govt of india and others, 1982 blt 311 and 1988 (1) scc page 40. The aforementioned decisions are authorities for the proposition that writ jurisdiction of a high court only provides for discretionary remedy and it should not be exercised for quashing an order which might have rise to another illegal order as if substantial justice has been done to the parties. In this connection, reference may be made to recent decision of mine in the case of jat bharat co v. Central coal field ltd. , reported in 1988 blt (rep) at page 192, wherein it was held that a high court would be justified in a given case to refuse to interfere with illegal order if it is inequitable so to do or if the same would be against public interest."

(36) In my opinion, therefore, there cannot be any doubt that if the orders of promotion are illegal being violative of article 16 of the constitution of india and/or the recruitment rules framed under as lattrate or article 309 of the constitution of india, the principles of natural justice need not be complied with inasmuch as in such an event the concerned employee had not derived any right to hold or continue in the said post. However, before, doing so the foundational facts have to be found at by the competent authority. Reference in this connection may be made to satyendra prasad v. Stale of bihar, 1991 (2) pljr 460, kamal kumar sinha v indira gandhi institute of medical sciences and others, 1990 (2) pljr 465, h. L gupta v. Instrumentality, 1992 (1) pljr 137; union of india and others v. Tejram parashramjl bombhate air 1992 sc 570.

(37) In the decisions relied upon by the learned counsel for the petitioner it appears that neither any reason has been assigned nor there is any discussion about the points at issue it is also well known that a decision is not an authority on the point which was not canvassed at the bar. See good year ltd v. State of haryana, reported in 1990 (2) scc 71:

(38) Yet recently the supreme court in state of punjab and others v. Surinder kumar and others reported in 1992 (1) scc 489, held as follows :

"a decision is available as a precedent only if it decides a question of law. The respondent are, therefore not entitled to rely upon an order of this court which directs a temporary employees to be regularised in his service without assigning reasons."

(39) The question which now arises for consideration in this application is as to whether the services of the petitioner could have been regularised. The learned counsel in this connection has relied upon a recent decision of the supreme court in state of haryana and others etc. V. Ptara singh and others, reported in jt 1992 (5) sc 179.

(40) In m. L gupta's case (supra) i had the occasion to extensively deal with various decisions of the supreme court of india as also of this court in that case it was noticed that the supreme court in its recent decisions not take into consideration its earlier decisions which were binding upon it. It was held : -

"unfortunately, however in none of the aforementioned cases, the supreme court considered its early binding precedents on the question of manner, regularisation, that is, state of mysore v. S v narayanappa, (967) 1 scr 128 and r n nanjudappa v. T thimmiah reported in (1972) 2 scr 799, the aforementioned judgments of the supreme court in b n nagarjan and others v. State of karnataka reported in air 1979 sc 1676. In r. N nanjundappa (supra) , the supreme court held that if an appointment is made infraction of the rules or if it is in violation of the provisions of the constitution, such appointments being illegal, the same cannot be regularised. It was further held that ratification or regularisation is possible of an act which is which 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. It held : 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 sectting at naught the rules."

(italicised is mine for emphasis). The supreme court in that case negatived the contention that regularisation in employment is possible by taking recourse to article 162 of the constitution of india in the following words : -

"in the present case, the contention on behalf of the respondents that the regularisation was itself a mode of appointment under article 162 of the constituti"n is unsound the rules came into existence in the present case in 1964. The regularisation was made with effect from 1958 therefore, the rules became applicable. The regularisation in the present case was also had because even without specific methods of requirement appointments could be made only by selection or promotion or transfer from equivalent grade. The method of recruitment and qualification for each state civil service was to be set forth in the rules of recruitment of such service specially made in that behalf,"

The supreme court court held that article 162 does not confer power to regularise nor does it confer power on the government to make rules for recruitment or conditions of service. It was further held -

"ah that the public seryice commission did was to regularise the appointment to the post of the principal. The regularisation by the state of appointment is with effect from 1958. This regularisation is bad for following reasons. First regularisation is not itself a mode of appointment. Secondly, the modes of appointments are direct recruitment or selection or promotion or appointing for reasons to be recorded in writ writing an officer holding a post of an equivalent grade by transfer from any other service of the state."

In b. N. Nagarjan and others v. State of karnataka, reported in air 1979 sc 1676, it was held : -

"it was argued that the regularisation of 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 the 1st of november, 1956. The argument however is unacceptable to us for two reasons firstly, the words 'regular' or regularisation do not connote permanence. These are terms calculationed to condone any procedural irregularities and are meant to cure only such defects as are attributal to the methodology followed in making the appointments. They cannot be construed so as to convey an idea of the nature of tenure of the appointments. (italicised is mine for emphasis). In none of the cases referred to by the learned counsel for the petitioner, the aforementioned authoritative pronouncements of the supreme court which have defined the terms 'regular' and 'regularisation' were taken into consideration. The decisions of the supreme court, referred to on behalf of the petitioners ; therefore, will have to be considered from that angle. Thus, regularisation of casual labourers do no not mean that they can be permanently absorbed in the state service irrespective of the fact that there exists any vacancy or not. It has been held that respondent no. 1 is a state. It, therefore, is bound to give equal opportunity of employment to all the candidates eligible therefore in terms of articles 14 and 16 of the constitution of india parmanent absorption of casual employees in the state service, in absence of any statu tory provision or a policy decision, is thus, impermissible. In a given situation, it may be permissible for the supreme court to lay down a scheme or direct a scheme for permanent absorption of its employees be made by the state. Such a power exists in the supreme court by reason of article 142 of the constitution of india as it may pass and decree or order for giving complete justice to the parties and such decree or order would be binding upon the state,"

(41) In m. L, gupta's case, this court also took into consideration the decision of this court in mahender ram v. Dy. Commissioner, palamau reported in 1989 blt 27 ; satish kumar v. The state of bihar reported in 1990 (1) pljr 219; udai kumar sharma v. Registrar co - operative societies reported in 1989 pljr 952; dijendra singh v state of sikkim, reported in 1990 labour and industrial cases, 43, rakesh ranjan verma and others v. State of bihar and others reported in 1991 (1) pljr 398 ; jayendra kumar singh and others v. The bihar state electricity board and others reported in 1991 (1) pljr 406, lalan pratad singh v, state of bihar (l. P a. 66/90 (r) disposed of on 18th september, 1990 ; kamal kumar sinhav indira gandhi institute of medical science, shrikrishnaputi patna, reported in 1991 (1) bihar law judgments 129: 1990 (2) pljr 46 satyanarayan sharma and others v. National mineral development corporation ltd. And others reported in 1990 (4) scc 163 : air 1990 sc 7054, as also a full bench decision of this court in nand kishore raut and others v. The state of bihar and others reported in 1991 bbcj 139.

(42) Reference in this connection may also be made to teja prasad v. State of bihar, reported in 1992 (2) pljr 568.

(43) Yet recently in delhi development horticulture employees' union v. Delhi administration, delhi and others, 1992 (1) judgment today 394, it has been observed : -

"we may take note of the pernicious consequence to which the direction of regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is employment exchange act which requires recruitment on the basis of registration in employment exchange, it has become a common practice to ignore the employment exchange and the persons registered in the employment exchange and to employ and get employed directly those who are either not registered are lower in the long waiting list in the employment register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularisation knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularised. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the employment exchange for years not all those who gain such back - door entry in the employment are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment 'n government departments, public undertaking or agencies ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscrimination regularisation has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that those who are employed on such works are required to be continued for 240 or more days have to be absorbed as regular employees although the works are time bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both courts"

In karnataka state private colleges stop - gap lecturers association v state of karnataka and others, (1992) scc 29, the supreme court agains held : -

"ad hoc appointments, a convenient way of entry usually from backdoor, at times even in disregard or rules and regulations, are comparatively recent innovation to the service jurisprudence. They are individual problems to begin with, become a family problem in court of law. It is unjust and unfair to those who are lesser fortunate in society with little or no approach even though better qualified more meritorious and well deserving. The infection is widespread in government or semi - government departments or state - financed institutions. It arises either because the appointing authority resorts to it deliberately as a favour or to accommodate someone or for any extraneous reason ignoring the regular procedure provided for recruitment as a pretext under emergency measures or to avoid loss of work etc. Or the rules or circulars issued by the department itself empower the authority to do so as a stop - gap arrangement. The former is an abuse of power. It is unpardonable. Even if it is found to have been resorted to as a genuine emergency the courts should be reluctant to grant indulgence, latter gives rise to equities which have bothered courts every now and then."

(44) In state of punjab and others v. Surinder kumar and others, 1992 (i) scc 480, it has been held : -

"there is still another reason why the high court cannot be equated (stc) with this court the constitution has. By article 142, empowered the supreme court to make such orders as may be necessary "for doing complete justice in any case or matter pending before it", which authority the high court does not enjoy. The jurisdiction of the high court, while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions, and it cannot trangress the limits on the basis of whims or subjective sense of justice varying from judge to judge. "

In sandeep kumar v. State of u p. , air 1992 sc 713, the supreme court"held :

"from the facts placed before us, it appears that the scheme under which the petitioners are working is of a very specific nature. There is wo permanent need for the work and since it is a project for a particular purpose, it will not be possible to direct that the petitioners may be regulatised in. The supreme court again reiterated its aforementioned view in karnataka state private college stop - gap lecturers association v. State of karnataka, 1992 (1; jt sc 373.

(45) In dara singh's case (supra) , the supreme court was considering the policy decision of the state of punjab and haryana for regularisation of ad hoc employees who were continuing for several years only pursuant to the aforementioned policy decision only a number of persons who satisfy the conditions prescribed therein, the orders issued by the aforementioned judgments were regularised however, some employees although were not regularised they were allowed to continue and those employees approached the higa court. The high court gave certain directions in the aforementioned writ applications.

(46) The supreme court in that case however upon consideration of the schemes framed by it in the matter of regularisation of service in its earlier decisions found that if the judgment ot the high court is implemented various problems would arise. The supreme court observed : -

"this is not a case, we must reiterate where the governments have failed to take any steps for regularisation of their ad hoc employees working over the years. Every few years they have been issuing orders providing for regularisation. In such a case, there is no occasion for the court to issue any directions for regularising such employees more particularly when none of the conditions prescribed in the said orders can be said to be either unreasonable, arbitrary or discriminatory. The court cannot obviously help those who cannot get regularised under these orders for their failure to satisfy the condition prescribed therein. Issuing general declaration of indulgence is no part of our jurisdiction in case of such persons we can only observed that it is for the respective governments to consider the feasibility of giving them appropriate relief, particularly in cases where persons have been continuing over a long number of years, and werd eligible and qualified on the date of their ad hoc appointment and further whose record of service is satisfactory."

(47) The supreme court thereafter proceeded to hold : -

"the normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employees may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc temporary employee. Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee ; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. Thirdly, even where an ad hoc or temporary employment is necessiatated account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, 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 constdered fairly. An unqualified person ought to be appointed only when qualified persons are not available through the above processes. Or to any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regalariation provided he is eligible and qualified according to rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the state. The proper course would be that each state prepared a scheme, if one is not already in vogue, for regularisation of such employees consistent with it reservation policy and if a scheme is already framed, the same may be made consistent with our observations herein so as to reduce avoidable litigation in this behalf. If and - when such perton is regularised he should be placed immediately below the last regularly appointed employee in that category, class or service as the case may be."

(48) In director, institute of management development v. Smt pushpa srivastava reported in 1992 sc 2 70, the supreme court upon distinguishing the case of jacob v. Kerala water authority, 1990 sc 22 28 held: -

"in the instant case, there is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end."

(49) It is, therefore, clear that the supreme court itself has held that even in the matter of appointment ad hoc and temporary employees provisions of articles 16 of the constitution of india are required to comply with.

(50) As noticed hereinbefore, in that case the supreme court considered its earlier decisions with regard to regularisation of employees.

(51) There cannot be any doubt that in absence of statute or statutory rules, the state may formulate scheme and/or adopt policy decisions for regularisation of its ad hoc employees if they had continued for a number of years subject to the criteria as laid down there for and reservation policy of the state. Such is not the position here.

(52) No policy decision of the state of bihar in this regard has been brought to our notice the petitioner has accepted his appointment in the year 1990 as a temporary employee without any demur whatsoever. As indicated hereinbefore in the year 1990 when the petitioner was appointed, the 1983 rules had already come into force and thus the petitioner could have been appointed only upon observance of the mandatory requirements thereof. The petitioner on his own showing was appointed without following the procedures laid down under the 1983 rules or the provisions of article 16.

(53) Court in piara singh instead of advancing the case of the petitioner militates against his contention.

(54) As the petitioner has not derived any legal right to continue in service and thus he is not entitled to any writ of mandamus from this court as has been prayed by him. This application is, therefore, dismissed but without any other as to costs. Application dismissed.