Full Judgment
Satya Brata Sinha, CJ
1. This writ petition is directed against the order dated 23-3-1998, whereby and whereunder the application OA No.484 of 1996, filed by the petitioner seeking a declaration that she is entitled for regularisation as Typist underthe control of the respondents by setting aside the order of the respondents in discontinuing her from service in terms of impugned Lr. No. B2/1775/94, dated 9-11-1995, and consequently declare the cut-off date mentioned in G.O. Ms. No.212, F&P; dated 22-4-1994, as illegal, void, baseless and contrary to the law laid down by the Hon'ble Supreme Court, besides being opposed to the principles of equity, justice, fair play, and subversive of Articles 14 and 16 of the Constitution of India, was dismissed by the A.P. Administrative Tribunal.
2. The petitioner was appointed as Typist on daily wages basis by the respondents on 21-8-1992 in a sanctioned post and she is working as such under their control. Though, according to the petitioner, her services were liable to be regularised in terms of the afore-mentioned GO, the respondents terminated her services by order dated 9-11-1995. Assailing the said order of termination, the petitioner filed the aforementioned OA before the Tribunal. Before the Tribunal, respondent No. 1 filed a detailed counter-affidavit contending that the post of Typist was kept vacant (backlog) for SC and ST candidates, and as such, the question of regularising the services of the petitioner does not arise.
3. The Tribunal arrived at a finding of fact that the Chief Executive Officer of Zilla Parishad is the competent authority to make appointment, and therefore, the appointment made by the then Mandal President, was without authority. It is not in dispute that the appointment of the petitioner was without going through the selection process i.e., she neither appeared for any written examination or typing test conducted by the competent authority. The Tribunal in the aforementioned situation held:
'It is an undisputed fact that the applicant was not appointed by any written order.
Further it is also established case that she was appointed on daily wages by the then Mandal President orally. Further, it is also admitted fact that only Chief Executive Officer of Zilla Parishad is competent to appoint any employee. Further the post of Typist is to be selected after written examination by a competent authority. Further it is also pointed out that there are no vacancies in the concerned Mandal Parishad Office and the available vacancies are for the candidates of SC/ST that is for backlog vacancies. Nextly it is also the case of the respondents that she has not completed 5 years of service.....'
4. The learned Counsel for the petitioner inter alia submitted that having regard to the provisions of the A.P. Mandala Praja Parishad and Zilla Praja Parishads (District and Mandal Cadre-Noil-Government Servants) Service Rules, issued under Section 69(1) of the erstwhile Panchayat Samithis and Zilla Parishads Act, 1959, the 'appointing authority' having not been defined under the rules, the Mandal President could be said to have the power of making appointments. The learned Counsel further submitted that having regard to the fact that the petitioner has put in nearly five years of service, her case for regularisation should be considered sympathetically on humanitarian grounds without strictly going in terms of the letter of law, and in support of the said contention, he placed strong reliance upon the judgment of the Apex Court in Municipal Board, Pratabgarh, v. Mahendra Singh, : AIR 1982 SC1493 .
5. It is well settled principle of law having regard to the provisions of Articles 14 and 16 of the Constitution of India, all public appointments must be made strictly in terms of the statute or the statutory rules operating in the field. Before the Tribunal, it had not been disputed by the petitionerthat the Chief Executive Officer of theZilla Parishad is the appointing authority.Even assuming no 'appointing authority'has been defined under the aforementionedrules, still the. Mandal President had nopower to appoint the petitioner becausethe entire Mandal Parishad being a bodycorporate, could only be said to be theappointing authority. The Mandal President,being a peoples' representative, admittedly,had no jurisdiction to appoint, far lessmake an offer of appointment orally tothe petitioner as Typist, although MandalParishad being a statutory body, is a Statewithin the meaning of Article 12 of theConstitution of India.
6. Regularisation, as is well known, does not mean that an illegality should be regularised. Only an irregularity can be regularised. In the instant case, the petitioner has taken recourse to backdoor entry, and in her appointment, the respondents have thrown to winds all the norms governing public appointments. The very entry of the petitioner is illegal and bad. The petitioner cannot be said to have entered into service validly. Such backdoor appointments, as is well known, has been deprecated by the Apex Court in a catena of decisions. Further more, when a statute or the rules framed thereunder have been made as an exception to clause (2) of Article 16 of the Constitution of India, the same must be complied with strictly.
7. It is further well known that regularisation is not a mode of recruitment having regard to the decision of the Supreme Court in Dr. Arwdhati Ajit Pargaonkar v. State of Maharashtra and others, : (1995)ILLJ927SC . It is unnecessary to multiply decisions on that score having regard to the decision of a Division Bench of Calcutta High Court in Tarak Chowdhury v. State of West Bengal, 2000 (2) SLR 445, wherein one of us (S.B. Sinha, CJ), speaking for the Bench held:
'It has not been disputed that that 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. Arimdhati Ajit Pargaonkar v. State of Maharashtra and others, reported in : (1995)ILLJ927SC and several decisions of the Apex Court following the same. It is farther well known in view of several decisions of the Apex Court that only an irregular appointment can be regularised and not an illegal appointment. It is further well settled that regularisation 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 which decisions have been considered by the Apex Court in K Sreenivasa Reddy and others v. Government ofAndhra Pradesh and others, reported in : AIR 1995 SC586 . 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 Limited v. Md. Sarif reported in 2000 (1) CHN 210 = 2000 (2) SLR 229 (Cal.). The aforementioned 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.'
8. Having regard to the large volume of decisions of the Apex Court referred to in the aforementioned judgment, there cannot be any doubt whatsoever that the relief claimed by the petitioner cannot be granted. The decision of the Apex Court in Municipal Board, Pratabgarh (supra), upon which the learned Counsel for the petitioner placed reliance, in the facts situation of the present-case, is not applicable for even on facts, the Tribunal has held that the petitioner had not completed five years of service, and in any event in a case of this nature, no sympathy shown and any sympathy shown would be a misplaced one.
9. For the reasons aforementioned, we find no merit in the writ petition, and it is accordingly dismissed. No costs.