Public Employment : Persons, who come by Backdoor, should go through the same Door; Jammu & Kashmir High Court

Constitution of India - Public employment is not a bounty in the hands of  the State which can be distributed by it arbitrarily and at its whims and caprice.

To sustain rule of law and ensure protection of fundamental rights of the citizens, it is incumbent upon the State to refrain from acting in a manner which is not countenanced by law. Devising ways and means to overcome the constitutional mandate, sometimes by issuing statutory rules and sometimes by coming up with legislative enactments, is nothing but a calculated fraud on the Constitution. The State should appreciate the constitutional mandate before coming up with statutory rules, executive orders and the legislative enactments providing for regularization of services of the backdoor appointees.

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

Coram: Hon’ble Mr. Justice Sanjeev Kumar, Judge. 

SWP No. 1628/2004 MP Nos. 1679/2004, 399/2005

Date of order : 4 .07 .2018 

Raj Kumar and ors V. State of J&K and ors. 

Appearing counsel: For Petitioner(s) : Mr. Z.A.Shah Sr. Advocate with Mr. Jagpal Singh, Advocate.

We are a unique State, which though an integral part of India, has its own Constitution, apart from the Constitution of India that is applicable to the State of Jammu and Kashmir subject to the provisions of Article 370 of the Constitution of India. It may not be necessary for our purpose to trace out the historical background and the circumstances responsible for this unique constitutional position which our State enjoys.

2. India is a sovereign democracy governed by the Rule of law. Unlike other parliamentary democracies, we have a constitutional supremacy in our country. The constitutional provisions which form the essential features and basic structure of the Constitution cannot be amended by the Parliament even if it is unanimous in its opinion. The Preamble of the Constitution of India declares: "WE, THE PEOPLE OF INDIA” having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens. On the similar  lines is the Preamble of the State Constitution. In Kesavanand Bharati Sripadagalvaru and ors. v State of Kerala and anr., (1973) 4 SCC 225 also known as fundamental rights‟ case, it was held that preamble is a part of the Constitution and provides a key to open the mind of the makers of the Constitution. It also speaks about the constitutional philosophy unfolded by the framers of the Constitution through different parts and the Articles of the Constitution. 

3. The preamble to the Constitution can be divided into following three parts: 

(a).The people of India in their constituent Assembly adopted, enacted and gave to themselves a fundamental document of governance known as the Constitution of India. 

(b)The people of India solemnly resolved to constitute India into a sovereign democratic republic. 

© The people of India solemnly resolved to secure to all its citizens four objectives i.e, justice; social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of a opportunity and to promote among them all and lastly fraternity assuring the dignity of the individual and unity and integrity of the nation.

4. The words “ justice, liberty, equality and fraternity” are the words of passion and power. Amongst four objectives resolved by the people of India, to be achieved, the third objective i.e equality of status and opportunity is soul of our Constitution. The equality has two aspects, negative and positive. The equality can be achieved to some extent by removing inequality, but the equality of status and opportunity, used absolutely, as they are in the preamble, cannot be realised because the same mean more than the removal of inequality. No one would believe that an Indian labourer is equal in status and opportunities to the Prime Minister of India. Again, opportunity is partly a matter of chance, partly a matter of capacity to seize the opportunity should it come. The third objective laid down in the preamble has been sought to be achieved through Articles 14 and 16 of the Constitution contained in part-III of the Constitution of India dealing with fundamental rights. Article 14 of the  Constitution of India is a general Article on equality and does not in terms provide for equality of status and opportunity, but it provides that State shall not deny to any person equality before law or the equal protection of laws. To some extent, these provisions help to secure equality of status and opportunity, but the doctrine of classification makes large inroads into the concept of equality of status and opportunity. Articles 14, 15 & 16 of Constitution of India are correlated and spell out vividly the concept of equality embodied in these Articles. Undoubtedly, the concept of equality envisaged in Articles 14, 15& 16 of the Constitution is a founding faith of our Constitution and indeed a pillar on which rests the foundation of our democratic republic. 

5. Hon‟ble Supreme Court in the case of Ajay Hasia etc. vs Khalid Mujib Sehravardi, AIR 1981 SC 487 in paragraph 16 held thus:

‘If the Society is an "authority" and therefore "State" within the meaning of Article12, it must follow that it is subject to the constitutional obligation under Article 14. The true scope and ambit of Article 14 has been the subject matter of numerous decisions and it is not necessary to make any detailed reference to them. It is sufficient to state that the content and reach of Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differentia fulfils two conditions, namely, (i) that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action. It was for the first time in E.P. Royappa v. State of Tamil Nadu that this Court laid bare a new dimension of Article 14 and pointed out that Article has highly activist magnitude and it embodies a guarantee against arbitrariness. This Court speaking through one of us (Bhagwati, J.) said :

"The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle ? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to  a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbled, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. This vital and dynamic aspect which was till then lying latent and submerged in the few simple but pregnant words of Article 14 was explored and brought to light in Royappa's case and it was reaffirmed and elaborated by this Court in Maneka Gandhi v. Union of India where this Court again speaking through one of us (Bhagwati, J.) observed :

"Now the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated is this article ? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning for, to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits...............Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence." This was again reiterated by this Court in International Airport Authority's case (supra) at page 1042 of the Report. It must therefore now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary, must necessarily involve negation of equality. The doctrine of classification which is evolved by the courts is not para-phrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore there is arbitrariness in State action whether it be of the legislature or of the executive or of  "authority" under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact, the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs though the whole of the fabric of the Constitution‟. 

6. From the foregoing paragraph of the judgment in Ajay Hasia‟s case (supra), it is clear that equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 of the Constitution which encompasses this concept strikes at arbitrariness in State action and ensures fairness and equality of treatment. Equality, as is rightly said, is antithetic to arbitrariness. True, equality and arbitrariness are sworn enemies. The doctrine of classification evolved by the Courts is not paraphrase of Article 14 of the Constitution nor is it the objective and end of that Article but it is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and, therefore, constituting denial of equality. The classification to be valid has to satisfy twin conditions before it could be protected under Article 14 of the Constitution. The classification should have intelligible differentia and it should have nexus with the object sought to be achieved by such classification.

7. Article 16 of the Constitution of India is enacted to ensure the equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. Providing further that in the matter of employment under the State, no citizen shall be discriminated on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. The broad concept of equality envisaged under Article 14 of the Constitution which is general in nature has been put in place in the matter of employment under the State by virtue of provisions of Article 16 of the Constitution. Article 16(1) does not in terms confer a right on a citizen to obtain public employment, but it does confer a right to an equality of opportunity for being considered for such employment. The Article does not  exclude selective tests, nor does it preclude the laying down of qualifications for office. In the context of concept of equality as envisaged under Article 14,15,& 16 of the Constitution and enunciated by the Hon‟ble Supreme Court in number of cases starting from Kesavanand Bharati‟s and Menaka Gandhi‟ etc., making appointments to the Government services by way of direct recruitment, without inviting applications and providing opportunity to the eligible candidates amounts to denial of equal opportunity to the persons similarly situated. The State being well aware of its solemn constitutional obligation to ensure to the citizens of this Country equality of status and of opportunity as envisaged in the preamble of the Constitution of India as well as State Constitution and in Articles 14 and 16 of the Constitution which gives a constitutional dictate to the State not to deny to any person equality before law and to ensure that there is equality of opportunity to all citizens in the matters relating to employment or appointment to any office under the State, has been consistently acting in a manner which is tantamount to denial of such equality of status or equality of opportunity. During the last few decades, we have witnessed a unique modus operandi adopted by the successive Governments to play fraud on the Constitution. The equality of opportunity in the matter of employment which is guaranteed to the citizens as a fundamental right has been violated flagrantly with impunity. The modus operandi adopted by the successive Governments for achieving cheap political motives is to first recruit handpicked candidates on account of their political affiliations and proximities and then engage them on ad hoc, contractual, temporary and daily wage basis on the pretext that such arrangements are required to be made to meet the exigencies and the emergent situations. These persons are thereafter continued from time to time and till the Government comes up with a policy of regularization of the services of such persons. These persons are regularized in Government service either by issuing executive orders, statutory rules, or even by legislative enactments. Whatever be the mode adopted by the Government to  regularize these temporary, ad hoc, contractual and daily wage employees, picked up arbitrarily other than by holding a fair process of selection and providing fair opportunity to the eligible candidates, is nothing short of fraud on the Constitution. By such action and inaction, the State has virtually rendered the provisions of Articles 14 and 16 redundant and dead letter in the document known as Constitution of India.

9. I am reminded of several such executive orders, statutory rules and legislative enactments promulgated by the Government from time to time to regularize these backdoor entrants to the Government service. SRO 64 of 1994 whereby the Government promulgated J&K Daily Rated Workers Work Charged Employees (Regularization) Rules, 1994 was one such statutory order which provided for regularization of all daily wagers who had completed seven years of service as such irrespective of whether they were initially recruited by any due process of selection or were handpicked on account of their political affiliation and proximity to those at the helm of affairs in the Government. Another Government order No. 1220 GAD of 1989 dated 11.09.1989 was issued whereby similar provision was made for regularization of the services of the temporary and adhoc appointees who had served for a particular period in such capacity. The latest in the series is J&K Special Provisions Act 2010 which provides for whole sale regularization of all temporary, ad hoc and contractual employees who had been serving on the State against substantive vacancies for the last seven years. All these executive orders, statutory rules and legislative enactments were promulgated by the Government to provide employment to their own handpicked people at the cost of those who were even deprived of opportunity to be engaged in such capacities like temporary, ad hoc, contractual or daily wager. The instant case highlights even a worst scenario where the Government initially appointed the petitioners on ad hoc basis for 89 days only and thereafter without there being any statutory rules or legislative enactments providing for regularization of such ad hoc employees, the Government straightway  offered them substantive appointments in the State without holding any selection process and without providing any opportunity to the other eligible candidates to compete for such posts. This apparently is a worst fraud on the Constitution and onslaught on the concept of equality envisaged under Articles 14,15 and 16 of the Constitution of India. It is not a case of anybody that State of Jammu and Kashmir which may be occupying a unique position in the Union is not governed by rule of law nor it can be urged that the fundamental rights contained in Part-III of the Constitution of India are not applicable to the State of Jammu and Kashmir. Like other fundamental rights, right of equality and equal opportunity in the matter of employment is a basic human right of individual and no civilized society in the world can deny such right to its citizen. 

10. In the aforesaid backdrop, the facts of the instant case need to be noticed. The petitioners, as they have claimed, were appointed as Weighmen/Chowkidars in the pay scale of Rs.2550-3200 on stop gap basis for 89 days in Consumer Affairs and Public Distribution Department. On such order passed in the case of petitioner No.7 Jai Singh is reproduced hereunder: 

“In the interest of smooth running of the Government work Shri Jai Singh S/o Bachiter Singh R/o Salora Tehsil Jammu is hereby appointed purely on temporary basis as Weighman/Chowkidar against the available vacancy in the pay scale of Rs.2550-3200 on stop gap arrangement for eighty nine days. Director Food and Supplies, Jammu No.545-47/G Dt:24/5/1998”

Although the initial appointment of the petitioners was temporary and ad hoc in nature and had been made for 89 days only, but it appears that subsequently the Directorate of Food and Supplies, Jammu by issuing different orders appointed the petitioners as Weighmen/Chowkidars substantively and put them on probation for a period of two years in terms of  Rule 11 of the J&K Food and Supply (Subordinate) Service Recruitment Rules 1977. One such order issued in the case of petitioner No.9 Jasbir Singh also needs to be noticed and is reproduced hereunder: 

“In pursuance to Government Order No.1786-GAD of 1997 dated 11.11.1997 issued under endorsement No. GAD(MTG) RB/8/86-III dated 11.11.1997 Shri Jasbir Singh S/o Shri Makhan Singh R/o village Nonial Tehsil Nowshera District Rajouri is hereby temporarily appointed as Weighman/Chowkidar in the pay scale of Rs.2550-3200 subject to verification of following documents in original by the drawing and disbursing officer before allowing the appointee to join:

(A) i. Academic qualification certificate.

ii. Date of birth certificate. iii.Certificate of being a member of schedule caste/Schedule tribe issued by the competent authority (if applicable) iv. Age and health certificate. v. Medical certificate. vii.Character certificate. viii. Antecedents certificate.

(B) The appointee shall be on probation for a period of two years in terms of Rule 11 of the Jammu and Kashmir, Food and Supplies (Subordinate) Service Recruitment Rules 1972.

The Assistant Directors, F&S Rajouri will allow the appointee to join only after verification of original documents required under rules. Food and Supplies, Jammu No.2903-5/G dated 12.2.1999”

11. It may be noted that during the period i.e in the year 1998 when the petitioners were initially engaged on ad hoc basis for 89 days , there were some similar local arrangements made by the Assistant Directors/Tehsil Supply Officers. The Night Chowkidars, who had been locally engaged by the Assistant Directors/TSOs and had not been placed in the regular pay scale, challenged the appointment of the petitioners herein through SWP No.1511/1998 on the ground that the appointment of the petitioners herein was without following due process of law in consonance with the Article 16 of the Constitution of India. In the said writ petition filed by the aforesaid persons, this Court, vide its interim order dated 28.08.1998 directed that pending further orders, no fresh  appointment in the category shall be made unless the petitioners are also considered. Pursuant to the aforesaid directions, the Director, CAPD directed all the Assistant Directors not to allow the petitioners to continue beyond 89 days. The aforesaid writ petition was, however, later on dismissed by this Court on 11.12.1998 and in January 1998 the Director , CAPD Jammu issued fresh orders of appointment in favour of the petitioners and they were put up on probation. One such order passed in the case of petitioner No.9 Jasbir Singh has already been reproduced here-in-above. 

12. The dismissal of the said writ petition was challenged by the writ petitioners before the Division Bench of this Court through LPASW No.476 OF 1999. The Division Bench disposed of the said appeal at the threshold vide its judgment dated 9.8.1999. The SLP preferred against the aforesaid judgment of the Division Bench before the Supreme Court was allowed and the matter was remitted back to the Division Bench of this Court for reconsideration. The appeal was reconsidered by the Division Bench of this Court pursuant to the directions of the Supreme Court and was finally disposed of on 9.2.2001 by providing as under: 

“Therefore, a direction is given that as and when the State considers the question of regularization of the services of the employees who have been issued letters of appointments on temporary basis, the claim of the appellants shall be also considered. It is also held that ad hoc and temporary arrangement which have been arrived at without issuing public notice, would not be extended beyond the period of six months or the term to which these appointments stand extended, whichever period is later and during this period the State would issue public notice and then make the appointments. In the meanwhile, the State is directed to pay the minimum wages which are payable to such employees”.

13. It appears that pursuant to the judgment of the Division Bench dated 9.2.2001, the Government examined the validity of the appointment orders  issued in January 1999 in favour of the petitioners and came to the conclusion that since the appointments of the petitioners had been made without issuing public notice and, therefore, were in violation of the judgment passed by the Division Bench and also the law laid down by the Supreme Court on the subject. Consequently the services of the petitioners were terminated with immediate effect vide order impugned dated 15.9.2004. It is this order the petitioners have assailed in this petition. 

14. Having heard Mr. Z.A.Shah learned Senior Counsel assisted by Mr.Jagpal Singh Advocate and perused the record, I find no merit in this writ petition for the reasons given hereafter.

15. Admittedly, the petitioners were engaged on ad hoc basis for a period of 89 days only and their appointments should have ended with the expiration of aforesaid period of 89 days. They were continued though no specific order of their continuation has been brought to the notice of this Court. The engagement of the petitioners as Weighmen/Chowkidars temporarily and in ad hoc capacity was not made pursuant to any selection process. Even notice inviting applications for such engagement was never issued. The appointment of the petitioners in ad hoc capacity temporarily for a period of 89 days was immediately resented by the similarly situated Chowkidars who had been engaged locally by the Assistant Director/TSOs but were not put in the regular grade. They, however, failed before the Writ Court. They filed appeal before the Division Bench which was also disposed of by issuing certain directions. Feeling dissatisfied, the petitioners therein approached the Supreme Court, the matter was remanded and reconsidered by the Division Bench of this Court. The order which has been passed by the Division Bench on reconsideration is already reproduced hereinabove. Apart from other directions, the Division Bench also directed to issue public notice and then make appointments. The matter was considered by the Government and vide order impugned, appointments of the petitioners herein were  cancelled, thus, paving a way for issuance of public notice and making appointments thereafter as directed by the Division Bench. 

16. Learned Senior Counsel assails the impugned order primarily on the following grounds: 

1 that the order impugned is vitiated for non-compliance with the principles of natural justice. 

2 that the order impugned is purported to have been passed in compliance to the directions issued by the Division Bench dated 9.2.2001, whereas the Division Bench had not directed for dispensing with the services of the petitioners but had provided that if the State considers the question of regularization of the services of the employees like the petitioners, the claim of the writ petitioners/appellants in the appeal would also be considered. 3 that since the petitioners have continued in service since the year 1999, therefore it would be highly inequitable to quash their appointments. 

17. The manner in which the petitioners have been provided employment in the State, as discussed above, is apparently a fraud on the Constitution. Their first engagement on temporary basis were arbitrarily as they were handpicked, not on the basis of any rational criteria, but probably due to their political affiliation or access in the corridors of power. Admittedly, there was no public notice issued for making such appointments. Otherwise also, they were engaged on stop gap basis for 89 days. They had no right to continue beyond the aforesaid period of 89 days. The Government, instead of conferring status of permanent employee on the petitioners by way of regularization as it had been doing earlier, straightway appointed the petitioners on substantive basis and put them on probation in terms of Rule 11 of J&K, Food and Supplies (Subordinate) Service Recruitment Rules, 1972. The substantive appointment was not backed by any Government order, statutory rule or legislative enactment but was a result of sheer arbitrary action and colourable exercise of power by the then Director, CAPD.  

18. Learned Senior Counsel could not justify the appointment of the petitioner on substantive basis made other than by following a due procedure envisaged by law. He fairly conceded that the appointment to the public office under the State can only be made by inviting applications and following the procedure laid down in the statutory rules or even in the executive instructions. He, however, raised other contentions to sustain the appointments of the petitioners which have been enumerated hereinabove. In view of the admitted factual context in which the controversy has arisen and the settled legal position, following questions need determination: 

„1 If a permanent appointment by way of direct recruitment in the Government service is made without inviting applications and providing opportunity to other eligible persons to compete, and whether for withdrawing such appointment, the State needs to comply with the principles of natural justice and such appointees are entitled to be heard ?. 

2 Whether an employee whose appointment is unconstitutional and void abinitio can plead equity on the ground that he has been working on the post for the last several years‟?. 

Principles of natural justice: 

19. The principles of natural justice which are universally recognized to be fundamental to the dispensation of justice are two fold:

I. Nemo Judex in causa sua which means that no one shall be a judge in his own cause.

II. Audi alteram partem which would mean that the person likely to be affected should be heard before any adverse action is taken.

20. The second principle which provides for giving a reasonable opportunity of being heard before any adverse action is taken against a person is no doubt a part of legal and judicial procedures and ensures fairness in action. Undoubtedly, natural justice is a great humanizing principle intended to invest law with fairness and secure justice. The soul of natural  justice is fair play in action as is held by the Supreme Court in the case of Maneka Gandhii v Union of India, AIR 1978 SC 597. The settled legal position, however, remains that the principles of natural justice are in built in the statutory rules and require observance unless the same stand excluded by rules itself. It would, however, be apt to notice what was observed by the Supreme Court in the case of Chairman, Board of Mining Examination and Chief Inspector of Mines and anr vs. Ramjee, AIR 1977 SC 965. The Supreme Court in the said case observed as under: 

“Natural justice is not unruly horse, no lurking land line, nor a judicial cure all. If fairness is shown by the decision/maker to the man proceeded against, the form, features and fundamentals of such essential process properly being conditioned by facts and circumstances of each situations, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter” 

21. In several decisions thereafter, the Supreme Court has reiterated that doctrine of natural justice cannot be imprisoned within the strait-jacket formula and its application would depend upon the scheme and policy of the statute and relevant circumstances involved in a particular case. (See Union of India v. P.K.Roy and others, AIR 1968 SC 850: Channabasappa Basappa Happali v State of Mysore, AIR 1972 SC 32 and Kumaon Mandal Vikas Nigam Ltd v Girja Shanker Pandey and ors, (2001) 1 SCC 182)

22. From the long line of judicial precedents, it is now fairly settled that though the principles of natural justice are not the embodied rules but are essential part of legal and judicial procedures. Ordinarily, when an adverse action is to be taken against an individual, he should be provided an opportunity of being heard. But it is also equally well settled that the principles of natural justice, particularly the principle of Audi alteram partem is not all pervasive and of universal application, it depends upon the facts and circumstances of each case. There may be cases where on admitted or undisputed fact, only one conclusion is possible. In such situation, the Court may not issue writ to compel the observance of the principles of natural justice. (See S.K.Kapoor v. Jag Mohan, AIR 1981 SC 136). Similarly in the case of State of U.P v O.P.Gupta, AIR 1970 SC 679, the Supreme Court has observed that the Courts have to see whether non observance of any of the principles enshrined in statutory rules or principles of natural justice have resulted in deflecting the course of justice. 

23. Thus, it can be held that even if in a given case, there has been some deviation from the principles of natural justice but which has not resulted in grave injustice or has not prejudiced the cause of the delinquent, the Court may not interfere. The judicial precedents have also evolved the “useless formality theory” which means that if the situation is not likely to change even if the opportunity of being heard is given to a person adversely affected by action, the compliance of principles of natural justice need not be insisted upon for in such situation, complying with the principles of natural justice would only be an exercise in futility. It is equally well settled that every action complained of is to be tested and analyzed on the touchstone of doctrine of prejudice.

24. In the backdrop of aforesaid legal position, if we examine the facts of the instant case, it is abundantly clear that providing of an opportunity of being heard to the petitioners would not alter the position. They have not claimed nor it is their case that their appointments are in consonance with law or that some procedure known to law has been followed in making their appointments. It is nowhere contended by the petitioners that their appointments had a statutory or constitutional backing. Assuming a situation where this Court quashes the impugned order and directs the respondents to comply with principles of natural justice before passing adverse order against the petitioners, the petitioners would still have no defence to offer. This is what is known in law a “useless formality‟. In such situation, there is no  requirement to insist upon the respondents to comply with the principles of natural justice. That apart, the petitioners had ample opportunity to point out in this petition as to how they have been prejudiced and how the position would have been different had they been put on notice and provided an opportunity of being heard. Their appointment is un-constitutional, illegal and void abinitio. That would mean as if they were never appointed to any post. Such un-constitutional and backdoor appointments do not create a right in favour of appointees, as such, they cannot complain that they have been deprived of their right that they never had, by non-compliance of principles of natural justice. 

25. The appointments, as already observed, are a fraud on the Constitution and cannot be countenanced on any count. No amount of opportunity of being heard given to the petitioners would change the position that their appointments are void abinitio, illegal and fraud on the Constitution. The petitioners cannot even claim that they are the innocent beneficiary of State action. Ignorance of law is no bliss and it should have been known to the petitioners that appointment in Government service is regulated by rule of law and is not a subject matter of manipulation and management. Direct recruitment to various posts under the State and the Union are made by inviting applications holding prescribed tests and giving full and reasonable opportunity to all the eligible candidates to apply and compete for such notified posts. Any appointment de hors the aforesaid procedure hits at the concept of equality of opportunity in the matter of public employment as envisaged under Article 16 of the Constitution of India. In that view of the matter, I am not persuaded to agree with the argument of learned Senior Counsel that non compliance with the principles of natural justice in the instant case has vitiated the order impugned.

26. Learned Senior counsel has vehemently argued that the order impugned dispensing with the services of the petitioners has been issued purportedly in compliance to the directions of the Division Bench, whereas  the Division Bench has no where directed that the services of the petitioners be dispensed with. It is true, as is evident from the operative portion of the judgment reproduced hereinabove, that there is no specific direction by the Division Bench of this Court to terminate or dispense with the services of the petitioners, but the tone and tenor of the directions is that the posts held by the petitioners be filled up by issuing public notice. The Division Bench has also held the appointments of the petitioners, though indirectly, to the posts without inviting applications as illegal. That apart, even independent of the directions issued by the Division Bench, the order impugned, which is in consonance with the settled legal position, cannot be held to be bad. It is the solemn duty of the State to reverse orders, if any, passed by the subordinate officers, if the same are found to be illegal and fraud on the Constitution. 

27. The Director CAPD having no authority to make direct appointments otherwise than by following the due procedure, issued the orders of appointment in favour of the petitioners knowing fully well that the public employment is not a largesse to be distributed arbitrarily and that no direct recruitment to the posts under the State can be made without inviting applications and without providing opportunity to all eligible candidates to participate in the selection process. The procedure adopted by the Director concerned was unknown to law and strictly prohibited under Article 14 and 16 of the Constitution of India. Respondents, thus, committed no illegality in withdrawing the order of appointment of the petitioners which, on the face of it, was void abinitio and unconstitutional. The argument raised by the learned Senior counsel is, therefore, not tenable. 

EQUITY: Whether the appointment of the petitioners are liable to be saved for the reason that they have been in service for a long period.

29. Learned Senior Counsel appearing for the petitioners vehemently urged that the petitioners who were appointed in the year 1999 have been in continued service of the State for the last about 19 years, therefore, throwing  them out of the job at this stage would not only be harsh to them, but would be highly inequitable. 

30. Learned Senior Counsel may be correct in his submissions but the fact remains that immediately after the petitioners were appointed to the service through backdoor means, their appointment was assailed in the Court of law. The litigation remained pending till it was finally set at rest by the Division Bench in its judgment reproduced hereinabove. It is also true that in the aforesaid litigation, the petitioners were not a party and the writ petitioners in the said litigation were only claiming parity. However, taking cue from the judgment of the Division Bench, the Government terminated the services of the petitioners vide order impugned in this petition and this Court, vide its order dated 04.10.04 stayed the impugned order. From 04.10.04 till today, the petitioners are continuing on the strength of the Court order. 

31. In this factual backdrop and in the light of the submissions made by the learned Senior Counsel, I have given my thoughtful consideration to this aspect, but find that petitioners are not entitled to any equity. This is so for the reason that their initial appointments on ad hoc basis followed by permanent appointments without inviting applications/advertisement is nothing short of fraud on the Constitution. The beneficiary of the fraud on the Constitution cannot be permitted to claim equity. Ignorance of law is no excuse. The petitioners managed and manipulated their appointments in a manner unknown to law. They were handpicked by the then Director CAPD and were offered permanent appointments. It cannot be said that the petitioners were bonafide beneficiary of the action of the State. They knew fully well that they are being appointed without there being any process of selection, without there being any advertisement notice and without there being any opportunities provided to the candidates similarly situated to them to participate and compete in the selection. The appointment of the petitioners to their knowledge was a result of manipulation and act of favoritism shown by the then Director CAPD.

32. In these circumstances, it would be wholly unjustified to say that the petitioners were innocent and bonafide beneficiary of the State action. The plea of the petitioners, that they have continued for 18 years and, therefore, equity heavily tilts in their favour and that throwing them out of the job at this stage would be harsh and inequitable, also cannot be accepted. As discussed above, their appointments from the very beginning were mired in controversy. Their services were terminated in the year 2004 itself and thereafter the petitioners have continued for 14 years more pursuant to the directions issued by this Court. Needless to say that interim order passed in the case is always at the risk of the party in whose favour it is passed and cannot inure to the benefit of the party nor any equity can be built thereon. Otherwise also, mere continuation of an employee on the post for long does not legitimize the appointment if it is inherently illegal and unconstitutional. At this stage, it would be appropriate to notice what was held by the Supreme Court in para 12 of the judgment rendered in the case of Union Public Service Commission v Girish Jayanti Lal Vaghela (2006) 2 SCC 482. For facility of reference para 12 of the judgment supra is reproduced hereunder:

“The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of the candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without using advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a  fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.” 

33. In a noted case of Secretary, State of Karnataka and ors v Umadevi and others, 2006 (4) SCC 1, in paragraph 41, it was observed by the Supreme Court in the following manner: 

“The binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment” (emphasis added)” 

34. To the similar extent is the judgment of the Supreme Court in the case of Official Liquidiator vs Dayanand and others, (2008) 10 SCC 1: National Fertilizers ltd and ors vs Somvir Singh (2006) 5 SCC 493: Kendriya Vidyala Sangathan and others vs L.V.Subramanyeswara and another, (2007)5 SCC 326 and State of Orissa and another vs Mamata Mohanty, (2011) 3 SCC 436.

35. Since I have found the appointment of the petitioners illegal and a fraud on the Constitution, there is no scope for any misplaced sympathy and leniency in the matter. The Court cannot become a party to perpetuation of fraud on the Constitution. In this regard, I am reminded of what was held by the Supreme Court in the case of R.Vishwanatha Pillai vs State of Karnataka, (2004) 2 SCC 105. The supreme Court in the said case held that any appointment obtained by fraud and deceit is void from its inception and the beneficiary of such appointment cannot claim the protection of Article 311 of the Constitution of India. There should be no doubt in the mind of any person that such persons, who come by backdoor, should go through the same door. As noticed above, the appointment of the petitioners were made in the teeth of the settled legal position adumbrated by the Supreme Court in a number of judgments and allowing such appointments to continue on the basis of misplaced sympathy would be tantamount to putting premium for unconstitutional acts of the State and its officers. Sooner than later, the State needs to understand that public employment is not a bounty in the hands of  the State which can be distributed by it arbitrarily and at its whims and caprice. To sustain rule of law and ensure protection of fundamental rights of the citizens, it is incumbent upon the State to refrain from acting in a manner which is not countenanced by law. Devising ways and means to overcome the constitutional mandate, sometimes by issuing statutory rules and sometimes by coming up with legislative enactments, is nothing but a calculated fraud on the Constitution. The State should appreciate the constitutional mandate before coming up with statutory rules, executive orders and the legislative enactments providing for regularization of services of the backdoor appointees. Less said the better and I conclude that there is no merit in this writ petition and the same is, therefore, dismissed along with MPs.