Cases referred:
Paras.
1. 1998 (1) L.L.N 560
6
2. 1997 L.& I.C 2557
7
3. 1997 L.& I.C 2384
7
4. (1997) 2 SCC 556 : A.I.R 1997 S.C 1896
6
5. 1996 (2) L.L.N 520
6
6. (1996) 7 SCC 499 : A.I.R 1996 S.C 3230
8
7. 1996 L.& I.C 1236
7
8. (1996) 2 SCC 459 : A.I.R 1996 S.C 1175
12
9. (1995) 1 SCC 138
6
10. 1994 Supp (3) SCC 380 : A.I.R 1995 S.C 962
7
11. (1995) 1 SCC 745 : A.I.R 1995 S.C 705
12
12. (1994) 2 SCC 630
6
13. 1994 A.I.R S.C.W 4868
7
14. (1994) 2 SCC 204 : A.I.R 1994 S.C 1654
8
15. 1988 (1) L.L.N 1
2 and 10
16. A.I.R 1987 S.C 1345
3
17. 1986 (2) L.L.N 435
2 and 9
18. 1980 (1) L.L.N 9
7
19. (1974) 2 SCC 506 : A.I.R 1974 S.C 2177
12
20. 1972 L. &I.C 618
7
21. 100 C.W.N 48
7
22. 99 C.W.N 440
7
For appellants.— Sri Manik Chandra Niyogi and Sri Shyamal Bhattacharjee.
For Respondents.— Sri T.N Shukla and Sri Anil Kumar Gupta.
The Judgment of the Court was delivered by
Satyabrata Sinha, J.:— The writ-petitioners are the appellants. They being aggrieved by and dissatisfied with the judgment and order, dated 21 September 1995, passed by a learned Single Judge of this Court in CO. No. 18625 (W) of 1992 have preferred this appeal. By the said judgment and order, the writ application was dismissed. The fact of the matter is not much in dispute. The petitioners were appointed on ad hoc basis in the post of Lecturer of the West Bengal Educational Service and posted at different Government colleges on 13 November 1976, 6 December, 1974 and 9 July, 1976 respectively. It is not the case of the petitioners nor it appears from the writ petition that they were appointed upon following the recruitment rules as provided for in the statute and upon compliance of the provisions of Arts. 14 and 16 of the Constitution of India. Initially they were appointed for six months and they had been reappointed after break in service for a day on each occasion. Admittedly, the State Government (which in our opinion had no say in the matter) regularised their services with effect from 18 December 1985. The petitioners contend that in relation to the career advancement scheme adopted by the respondents their services should have been confirmed with effect from their respective dates of appointment on ad hoc basis and not from the date of regularisation. Before the learned trial Judge, the learned counsel for the appellant produced a copy of the order passed by a learned Judge of this Court showing that a similar writ application had been allowed. Before the learned trial Judge also a circular, dated 16 August 1986, was produced which is contained in Anenxure B to the writ application. The learned trial Judge upon hearing the parties came to the conclusion that the petitioners appointment being illegal their services cannot be reckoned from their respective date of initial appointment but would be counted from the date of regularisation. As regard the contention of grant of increment, the learned trial Judge held that the same was granted for the purpose of fixation of increment in the scale of pay and thereby the petitioners did not derive any legal right. The learned trial Judge also refused to exercise his discretion on the ground of delay as according to the learned trial Judge the petitioners having been appointed initially in the year 1974 or 1976 could not have maintained the writ application in the year 1992.
2. Sri Manik Chandra Niyogi, learned counsel for the appellants, has raised three contentions in support of this appeal. The learned counsel contends that keeping in view the fact that as the service of the petitioners/appellants had been regularised and they have been allowed to draw increment, they would be deemed to have been appointed from the date of their initial appointment particularly in view of the fact that break in service has been condoned by the concerned authority himself. According to the learned counsel for the appellants they were appointed legally and the state and its officers at this stage are estopped and precluded from contending that for the purpose of implementation of career advancement scheme their services should be counted from the date of their initial appointment on ad hoc basis. In support of the aforementioned contention strong reliance has been placed upon a decision of the Apex Court in the case of Sushil Kumar Yadunath Jha v. Union of India reported in 1986 (2) L.L.N 435. It was next contended that in any event, the petitioners' services were bound to be regularised from the respective dates of their initial appointment on ad hoc basis and in support of the said contention reliance has been placed on a decision in the case of Bhagwan Dass v. State of Haryana reported in 1988 (1) L.L.N 1.
3. Sri Niyogi, learned counsel for the appellants, has contended that keeping in view the fact that a learned Single Judge of this Court had allowed a similar writ application as it appears from page 14 of the Paper Book, this Court should not pass any other order in support of the aforementioned contention the learned counsel has sought to place reliance on a decision in the case of Bir Bajrang Kumar v. State Of Bihar reported in A.I.R 1987 S.C 1345. It was further contended that the order impugned in the writ application was bad in law as the same was in contravention of the direction passed by this Court, inasmuch as, the authority who had not heard the matter passed the said order.
4. Having heard the learned counsel for the parties, we are Unable to agree with the submission made by the learned counsel for the appellants. The petitioners were appointed through back-door. At the time of their appointment the provision of the statute had not been followed at all. Articles 14 and 16 of the Constitution of India envisage that all persons should get equal opportunity of employment. Admittedly, prior to the appointment of the appellants neither any advertisement has been made nor any name has been called for from the local Employment Exchange.
5. It is accepted at the Bar that for the purpose of appointment of Lecturer in the college and that too in a Government college the rules framed by the State are required to be followed. In terms of Art. 320 of the Constitution of India the appointment of the appellants admittedly were to be made by the Public Service Commission. The Public Service Commission has not been approached. Even in the matter of regularisation of services of the petitioners, the opinion of the Public Service Commission had not been taken. Initial appointments of the petitioners being contrary to the public policy and contrary to the provision of law as well as Arts. 14 and 16 of the Constitution of India were wholly illegal.
6. Reference in this connection may be made to the case reported in Rabindra Sharma v. State of Punjab and Haryana [(1995) 1 SCC 138]. The Supreme Court has clearly held that any appointment made in violation of a statute is nullity. Reference in this connection may also to be made to N. Mohanan v. State of Kerala reported in (1997) 2 SCC 556 : A.I.R 1997 S.C 1896 and Santosh Kumar Verma v. State of Bihar reported in 1998 (1) L.L.N 560. In the case reported in (1994) 2 SCC 630, the Apex Court has clearly held that appointment cannot be made by regularisation. The submission of Sri Niyogi, learned counsel, to the effect that the petitioners are continuing in service for a long time and, thus, they should be deemed to have been appointed on their initial dates of appointment cannot be accepted in view of clear pronouncement of the Apex Court in the case of State of Orissa v. Dr. Prari Mohan Misra reported in 1996 (2) L.L.N 520, wherein the law has clearly been stated in the following terms:
“Mere prolonged or continuous service does not ripen into regular service to claim permanent or substantive status.”
7. A similar question as regard seniority recently arose before the Apex Court in the case reported in Government of Andhra Pradesh v. V. Srinivas Reddy [1994 A.I.R S.C.W 4868], Ramaswamy, J., relying upon the decision of the Supreme Court in the case of B.N Nagarajan v. State of Karnataka reported in 1980 (1) L.L.N 9 and R.N Nenjndappa v. J. Thimmaiah reported in 1972 L. & I.C 618, which judgment was rendered by three-Judges Bench, held that the appointment which was made in contravention of law cannot be taken note of for the purpose of seniority and the seniority of an employee would be reckoned from the date of his regularisation. This aspect of the matter has been considered by the Supreme Court of India again in the case of Arundhati A. Pargaonkar v. State of Maharashtra reported in 1994 Supp (3) SCC 380 : A.I.R 1995 S.C 962, which in turn has been considered by this Court in numerous decisions. To quote a view reference may be made to 1996 L. & I.C 1236 (sic), 99 C.W.N 440 Narendra Nath Palui v. State of West Bengal and 100 C.W.N 48. See also 1997 L. & I.C 2384 and 1997 L.&I.C 2557.
8. The Apex Court has also clearly held that a person who has come in through backdoor must go through that door. Reference in this connection may be made to (1994) 2 SCC 204 : A.I.R 1994 S.C 1654 and (1996) 7 SCC 499 : A.I.R 1996 S.C 3230.
9. In this view of the matter, we are of the opinion that the learned trial Judge has correctly held that the petitioners did not get any substantive right as regard reckoning of his initial date of appointment for the purpose of implementation of career advancement scheme. The appointment made by the college without following the procedure of law and without compliance of the principles laid down in Arts. 14 and 16 of the Constitution of India could not have been taken recourse to. The decision of the Apex Court in the case of Sushil Kumar v. Union of India reported in 1986 (2) L.L.N 435 (vide supra), is of no help to the petitioners. In that case the appellant before the Apex Court was reappointed after serving Kendriya Vidyalaya for a period of three years. It was held that there is no doubt that the appellants service was terminated but the grounds on which they are said to have terminated have subsequently not been found to be such as to constitute a permanent deterrent to a favourable consideration of the appellants' case.
10. In the case of Bhagwan Das v. State of Haryana reported in 1988 (1) L.L.N 1 (vide supra), the Apex Court did not consider the earlier decisions rendered by larger Bench. The latter decisions also do not support the said view. In any event, the said decision was rendered on the basis of the doctrine of equal pay equal work. The said decision also runs counter to the submission of the learned counsel for the appellants, as it was clearly held therein that they are not entitled to be absorbed as regular employees on a permanent basis from the date of their initial appointment but, however, they were entitled to pay on the basis of the length of service computed from the date of their appointment by disregarding breaks which have been given for a limited purpose.
11. In our opinion, therefore, the prayer of the petitioners to absorb them on a permanent basis from the date of their initial appointment on ad hoc basis has no justification.
12. It is true that a learned Single Judge of this Court in a similar situation has allowed a writ application. Apart from the fact that this Bench is not bound by the judgment of a learned Single Judge of this Court, the questions which have been raised in this writ application might not have been raised in the said application. No copy of the said judgment has been produced before this Court except a statement made in the writ application. Apart from the fact that we do not know as to how and under what circumstances the said judgment was rendered, in this case, we are taking into consideration the latest pronouncements of the Apex Court, this Court and other Courts. Furthermore, although it may be true that a co-ordinate bench should not pass any order in deviation or in departure of the judgment of another bench, but the same is done for the purpose of maintaining comity or amity in the decision. The said principle is not applicable when the earlier judgment was rendered per incurium. The petitioners who do not have any independent legal right cannot maintain a writ petition on the basis of such decisions. It is well-known that an illegal order passed by the authority cannot be invoked for the purpose of Art. 14 of the Constitution of India as there is no equality in illegality. Reference in this connection may be made to (1974) 2 SCC 506 : A.I.R 1974 S.C 2177 and (1995) 1 SCC 745 : A.I.R 1995 S.C 705. Furthermore, the Apex Court has clearly held that Art. 14 of the Constitution of India is a positive concept. Reference in this connection may be made to (1996) 2 SCC 459 : A.I.R 1996 S.C 1175. Furthermore if an illegal order has been passed, in our considered view, the petitioners cannot be permitted to obtain the same illegal order relying on Art. 14 of the Constitution of India. So far as the submission of Sri Niyogi, learned counsel for the appellants, to the effect that the order impugned in the writ application is bad in law as the authority who had passed the order did not hear the petitioners are concerned, even if accepted to be correct, the same need not be set aside as we have heard the petitioners at great length on the merit of their case. The said question was not raised before the learned trial Judge. As upon hearing the learned counsel for the appellants we are satisfied that the appellants are not entitled to any relief, such relief cannot be granted only because the order impugned in the writ application might not have been passed in accordance with law. It is a well-known principle of law that the relief under Art. 226 of the Constitution of India is a discretionary relief and while granting such relief the court if finds that an illegal order has been passed, may refuse to quash the same in the event it comes to a conclusion that the petitioner does not have any legal right to maintain a writ application.
13. For the reason aforementioned, we do not find any merit in this appeal which is accordingly dismissed.
14. There will be no order as to costs.
15. Ronojit Kumar Mitra, J.:— I agree.
Appeal dismissed.