Judgment:
ORDER
Satyabrata Sinha, CJ
1. This writ appeal depicts a sordid state of affairs prevailing in certain Departments of the Government of Andhra Pradesh in the matter of appointments, whereby the high-ranking officers have taken recourse to the methodology of backdoor appointments.
2. Bereft of all unnecessary details, the fact of the matter is as follows:
The respondent-Nizam's Institute of Medical Sciences issued an employmentnotification on 1-9-1998 inter alia for the posts of Clinical Assistant. In pursuance of the said notification, the appellant submitted her application to one such post. One Prof. Kakarla Subba Rao, Director, by letter dated 16-9-1997, purported to be on the basis of the discussions held between him and the appellant, sought to dole out an appointment in favour of the appellant, which reads as under:
'I was delighted to meet you the other day and as per our discussions I have been trying various plans of taking advantage of your employment in this institution. However, we have to create a special post for you, which requires the approval of the Executive Committee as well as the Governing Council. Hence, may I suggest that you should accept the Clinical Assistantship in the Department of Hospital Administration for which we have already advertised, although this is meant for physicians but as a paramedical person you are also eligible. The approximate pay will be around Rs.8,500/- per month. I know this is meagre but there is no other way of having you here even on ad hoc basis.'
3. A bare perusal of the aforementioned letter is suggestive of the fact, how backdoor appointment of the appellant was taken recourse to. The Director being aware of the fact that no post existed for the purpose of making appointment of the appellant in the post of Lecturer, and a special post is required to be created, requiring the approval of the Executive Committee as also the Governing Council, yet made such an appointment.
4. The appellant relying on the aforementioned letter of the Director, accepted the offer vide tetter dated 22-9-1999, and whereafter by letter dated 26-9-1997, the Director stated as follows:
'Please refer your letter dated 22-9-1997 expressing your willingness to join as Clinical Assistant (non-medical) in the Department of Hospital Administration. This is to inform you that the post carries the Central Pay Scales of Rs.2200-100-4000 with usual allowances. As stated earlier, recenlly we have issued Employment Notification for certain Faculty posts including Clinical Assistants. The last date for submission of application is 30-9-1997 along with registration fee of Rs.200/-. Please remit a sum of Rs.200/-in the NIMS Cash counter.
Certain selection process are involved which will be completed in the first week of October, 1997. After this you may join the post. As regards your role and responsibilities, this can be sorted out with the Medical Superintendent after your joining.'
5. Pursuant to the afore-mentioned letter, the appellant was called for interview vide letter dated 17-10-1997, and she was interviewed for the post of Clinical Assistant on 21-10-1997, and whereafter, she reported for duty on 22-10-1997 as Clinical Assistant. Strangely enough, on the same day i.e., 22-10-1997, the appellant was issued an offer of appointment, appointing her as Lecturer in the Department of Hospital Administration, even though the said post was not advertised. The appellant accepted the said offer on the same day. The matter did not rest there. The appellant filed an application for her appointment as Assistant Professor in the Department of Hospital Administration, which admittedly was not granted because of the extant rules that prevailed at that material point of time.
6. The appellant, thereafter on 29-1-1999, was served with a notice to show-cause as to why she shall not be removed from service. The respondents upon considering the cause/explanation submittedby the appellant on 2-2-1999, removed her from service by order dated 27-2-1999. Challenging the said order, she filed the writ petition, and the order passed therein is impugned in this writ appeal.
7. Before the learned single Judge, the only question that was raised was as to whether the appointment of the appellant was legal. The learned single Judge, by reason of the impugned order, has arrived at a conclusion that the appellant was not entitled to any relief as she was appointed illegally.
8. The learned Counsel for the appellant inter alia submitted that the appellant joined the post of Lecturer on the basis of the appointment order issued to her. According to the learned Counsel, the appellant, at all material point of times, was given to understand that she would be allowed to continue in the post of Lecturer having regard to her qualification. In any event, urges the learned Counsel, that the purported order of termination dated 27-2-1999 is per se illegal, as even assuming the appellant was not qualified to hold the post of Lecturer in the college, she was atleast entitled to hold the post of Clinical Assistant. It is not in dispute that the post of Clinical Assistant, to which the appellant could have been appointed, is a non-medical post. The appellant did not possess any medical qualification, which is the qualification requisite to hold the post of Lecturer, and therefore, she was not entitled to hold the post of a Lecturer. If further stands admitted, that prior to appellant being appointed as Lecturer neither any advertisement was issued nor any step was taken therefor by the respondents for filling up the post by inviting applications from eligible candidates. The said post was not even a sanctioned one.
9. It is well a settled principle of law that in terms of Article 16 of the Constitutionof India, before any appointment is made by a State, all eligible candidates to hold such post, must be considered therefor. Article 16, which is an extension to the principle of equality, as envisaged under Article 14 of the Constitution of India is required to be read conjointly. It is also not in dispute that by appointing the appellant, all norms applicable for making appointments to public posts, was given a go by. The appellant was appointed as Lecturer on the basis of personal choice made by the afore-mentioned Prof. Kakarla Subba Rao. Neither any advertisement was issued nor any application was called for from the eligible candidates for filling up the vacancy, and thus excluding consideration of the cases of other eligible candidates, and to top it all, there did not exist any vacant post.
10. It is not possible for this Court to accept the submission of the learned Counsel for the appellant that the appointment of appellant at best can be said to be an irregular one, which may be directed to be regularised having regard to the doctrines of Legitimate Expectation and Promissory Estoppel.
11. It is now a well settled principle of law that any appointment made in violation of the provisions of the Constitution of India or a statute or the rules framed thereunder, would be a nullity. The appellant has no right, far less, any legal right, to be appointed as Lecturer, and hold/continue to hold such post. No right can be conferred upon a person, who has gained entry through backdoor. In other words, before a person becomes legally entitled to hold/continue in a civil post, the appointment must be made in terms of the provisions of the Constitution as also the recruitment rules framed with regard thereto.
12. Although the decisions on the question are replete, suffice it to notice in this regard the decision of Apex Court inDr. Meera Massey v. Dr. S.R. Mehrotra, (1983) 3 SCC 88, wherein it was held all appointment should be in accordance with the rules and the procedure governing the field. A Division Bench of Calcutta High Court in Tarak Chowdhury v. State of West Bengal, 2000 (2) SLR 445, held:
'It has not been disputed that the petitioner was appointed on ad hoc basis. At the time of his appointment, recruitment rules framed in terms of the proviso appended to Article 309 of the Constitution of India had not been followed. The State while granting appointment to a person is not only bound to follow the recruitment rules made in terms of the proviso appended to Article 309 of the Constitution of India but is also bound to give effect to the provisions of Articles 14 and 16 of the Constitution of India. No right, far less any enforceable right flows from such illegal appointments. The recruitment rules, inter alia, provide for grant of equal opportunity to be considered for appointment to all eligible candidates. A person who is appointed through backdoor cannot claim permanence only because he had been working for some time. Reference in this connection may be made to the case of Dr. Arundhati Ajit Pargaonkar v. State of Maharashtra and others, reported in : (1995)ILLJ927SC and several decisions of the Apex Court following the same. It is further well known in view of several decision of the Apex Court that only an irregular appointment can be regularised and not an illegal appointment. It is further well settled that regularization cannot be a mode of recruitment (See R.N. Nanjundappa v. T. Thimmiah, reported in : (1972)ILLJ565SC and B.N. Nagarajan v. State of Karnataka, reported in : (1979)IILLJ209SC , whichdecisions have been considered by the Apex Court in V, Sreenivasa Reddy and others v. Government of Andhra Pradesh and others, reported in : AIR1995SC586 . It is now also well settled in view of the recent decisions of the Apex Court in State of M.P. and others v. Dharam Bir, reported in : [1998]3SCR511 , that the status of a person cannot be changed with the passage of time. A person- who was appointed on temporary or ad hoc basis, thus cannot claim the status of a permanent servant only because he had worked for some time. The said decision along with other decisions had been considered by this Court in a large number of cases. Reference in this connection, however, may be made to Biman Ch. Karmakar v. State of West Bengal, reported in 1999(2) CHN 289 and West Bengal Essential Commodities Supply Corporation Ltd. v. Md. Sarif, reported in 2000 (1) CHN 210 = 2000 (2) SLR 229 (Cal.). The afore-mentioned circular letter dated 3rd August, 1979 is not a statute. Even a policy decision cannot be adopted in derogation of statutory rules. Even the said purported memorandum dated 3rd August, 1979 is not an executive instruction within the meaning of Article 162 of the Constitution of India'.
13. Reference in the above connection be also made to the decision of a Division Bench of Calcutta High Court in Menoka Ghosh (PAL) v. Renu Sarkar, 2000 (4) SLR 25.
14. The word 'regularisation' has a definite connotation. Only irregular acts can be regularised. In R.N. Nanjudappa v. T. Thirumaiah, reported in 1971 (2) SCR 799 and B.N. Nagarajan v. State of Karnataka, reported in 1979 (3) SCR 937 the Apex Court categorically held that regularisation cannot be a mode ofrecruitment. The said decisions were followed by K. Ramaswamy, J., presiding over a Division Bench in V. Srinivas Reddy v. Government of A.P., reported in : AIR1995SC586 .
15. There are several decisions of the Supreme Court and High Courts in this regard including those reported in : (1995)ILLJ927SC , : (1997)IILLJ856SC , : AIR1997SC1446 , : (1994)ILLJ780SC , 1999 (2) CHN 289, wherein it has been held that the Court cannot direct regularisation of employees only because they had been working for a long period.
16. Regularisation can be effected inter alia, by reason of a statute or a policy decision.
17. The question, therefore, which has to be gone into is as to whether such a provision can be read in a statute. In AIR India, the Apex Court held so. There cannot be any doubt that if it is done the same would amount to judicial legislation. Of course, Courts do legislate, and it is too late in the day to say that while interpreting the provision of the statute and the Constitution the Courts cannot take recourse to the legislation.
18. The question which was required to be posed was whether in a regulatory statute, the Court can legislate in an arena which falls within the essential legislative function of the Parliament. A debate on that issue will be welcome.
19. The third question which requires everybody's notice would be the tilt of the Supreme Court in the matter of interpretation of statute from private law character to public law character.
20. The question as to whether the action of a State which is the subject-matter of a judicial review pertains to private law character or public law character depends on facts and circumstances of each case, but in Air India, Supreme Court appears to have introduced the theory of public law interpretation. While doing so, a new dimension in the interpretation of statute has been added. Whether such an innovation is possible under the rules of interpretation would again be a question . which may have to be ultimately answered by the Apex Court.
21. Another question which may also probably arise for consideration would be the doctrines of precedents and stare-decisis, i.e., whether the learned Judges ignored the said doctrine as they did not follow a long line of decisions by giving an additional power in the hands of the High Courts and the Supreme Court to direct regularisation of the contract labours which was within the exclusive domain in the Industrial Courts.
22. The Court was bound by the law of precedent.
23. It had not taken into consideration a decision of a concurrent Division Bench of the Apex Court in Madhyamik Siksha Parishad, U.P. v. Anil Kumar Mishra, reported in AIR 1994 SC 3638.
24. Furthermore, the decision in Secretary, Haryana State Electricity Board v. Suresh and others, 1999 (3) SCC 610, is by way of obiter. The ratio of the decision is the reason set out therein and not the obiter dicta.
25. In view of the afore-mentioned authoritative pronouncements, we have no other option, but to hold that the judgment, passed by the learned single Judge, impugned in this writ appeal, is unassailable. So far as the submission of the learned Counsel for the appellant to the effect that the doctrines of Legitimate Expectation and Promissory Estoppel would apply, suffice itto point out that unless a person establishes a legal right in himself or pleads and proves violation of any statutory rules and the provisions of the Constitution of India, no justiciable right by applying the doctrines of Legitimate Expectation, accrues. It is also well settled that there cannot be any estoppel against a statute, far less the provisions of the Constitution of India.
26. Before the doctrines of Legitimate Expectation and Promissory Estoppel can be given effect to, the Court must have sufficient materials before it to come to a definite conclusion that a promise had been made by a person competent therefor, and whereupon the appellant relied upon and changed his position. Such is not the position in the instant case. Admittedly, at a point of time, when the purported offer was made to the appellant, the Director did not have any authority to make such an offer in view of the fact that an advertisement for filling of the said post was issued, and in terms whereof the names of all eligible candidates were also called for from Employment Exchange. The Director had the requisite knowledge that for the purpose of creation of post, approval of the Executive Committee as well as the Governing Council is necessary, which is reflected from the letter dated 16-9-1997 written by the Director to the appellant. Even the post of Clinical Assistant was to be filled up through a process of selection in terms of the advertisement issued in regard thereto. As indicated previously, in the instant case, the appellant was appointed on the basis of private negotiations, which is alien and unknown in law, and that too even before the expiry of the last date for filing such applications by the eligible candidates. It is really surprising that an illegality committed by the State authority did not stop there, but went on till the appellant was invited to hold the post of Lecturer, which was neither in existence nor was sanctioned.
27. For the afore-mentioned reasons, there is no merit in the writ appeal, and it is accordingly dismissed. No costs.