Md. Arju Ali Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - sheikh, learned counsel for the petitioner as well as ms. in the letter, it was clearly indicated that the incumbents named therein including the petitioner were appointed against non-existent posts as detected by the screening committee. he was appointed on temporary basis, which had no retention beyond march 1996. this position was also known to the petitioner as will be evident from the averments made in the writ petition as well as the time to time representations submitted by him. it is also well settled that generally the employer is not bound to fill up any posts or post. 15. the prayer made in the writ petition is for regularization of the services of the petitioner and to release his arrear salary stated to be payable from june 1996. the prayer for regularization has obviously been made by the petitioner knowing it well that his initial appointment was illegal and that he has been continuing in his service without any post. regularization in service connotes official formalization of an appointment, which was made on a temporary or ad hoc or stopgap or casual basis or the like in deviation from the normal rules or applicable norms of appointment. reported in (2006) 7 scc 488 reference has been made to the aforesaid decision of umadevi as well as the decision of the apex court in a. state law officers reported in [1994]1scr348 it has been observed that it is equally well settled that those who come by back door should go through that door. same is the case in respect of the prayer for payment of arrear salary from june 1996. the petitioner knowing fully well that he has been appointed against a temporary post with temporary sanction behind it, of his own volition continued to remain in the school and now after 10 years, he cannot pray for release of his arrear salary. b.k. sharma, j.1. heard mr. m.a. sheikh, learned counsel for the petitioner as well as ms. m. gogoi, learned standing counsel, education department.2. by means of this writ petition the petitioner has prayed for a direction to the respondents to release his monthly salary stated to be payable from june 1996. this prayer has been made by filing the writ petition on 28.9.2006.3. the petitioner is an ma in economics and he was first appointed as assistant teacher in the school called jaluknbari girls high school in the district of kamrup on 1.6.1987. the petitioner has not annexed the copy of the order of appointment, but has annexed the copy of the certificate dated 20.7.1992 issued by the headmistress of the school certifying his services in the school as an assistant teacher from 1st june, 1987. thus it is not known as to on what basis he was so appointed. it appears that the services of the teachers of the school were provincialised by annexure-2 order dated 8.4.1993 including that of the petitioner. in the order of provincialisation the date of appointment of the petitioner was indicated as 1.11.1989. however, this aspect of the matter need not detain us, since the controversy involved is in respect of the subsequent appointment of the petitioner as subject teacher in the same school in 1995.4. the petitioner was appointed temporarily as subject teacher in economics in the same school against a post allotted to the school withdrawing the same from another school in the district of north lakhimpur. it will be pertinent to mention here that a regular post of subject teacher in economics in the school was withdrawn alongwith the incumbent upon her transfer to another school namely panbazar girls hs school.5. the appointment of the petitioner as subject teacher in the school was admittedly without following the due procedure of recruitment as per rules. there was no advertisement, no selection and the petitioner was simply appointed on temporary basis against a temporary post allotted to the school upon withdrawal of the same from another school. this aspect of the matter has been fairly admitted by the learned counsel for the petitioner.6. the petitioner after his aforesaid appointment received his salary upto may 1996 and since june 1996, he has not been paid his salary. in the writ petition, it has been admitted by the petitioner that he could not be paid his salary since the government has not retained the post against which he was appointed. however, the petitioner, as stated in the writ petition has been continuing in his service without any post/retention of the post. nothing has been stated in the writ petition as to what the petitioner did when he did not receive his salary from june 1996. in paragraph 7 of the writ petition, he has stated that he appeared before the screening committee constituted by the government of assam for the purpose of screening the subject teachers working against non-existent posts.7. by annexure-7 letter dated 30.12.1999 the joint director of secondary education, assam furnished the particulars regarding appointment of the petitioner alongwith another to the secretary to the government of assam in the education department. in the letter, it was clearly indicated that the incumbents named therein including the petitioner were appointed against non-existent posts as detected by the screening committee.8. after the aforesaid position the petitioner still continued in his service, admittedly not against any post. he made time-to-time representations as reflected in annexure-9, 9a and 9b dated 8.12.2000,11.9.2001 and 1.2.2002 respectively. such representations were followed by further representations made by the petitioner vide annexcures 11, 11a and 11b dated 2.6.2003, 23.6.2003 and 29.12.2003 addressed to the minister, finance and the minister, education. in all the representations the petitioner made prayer for adjustment of his service against any post. thus, it was known to him that he had been continuing in service without any post.9. the director of secondary education, assam has filed two counter affidavits. in the first affidavit filed on 17th november, 2006 it has been stated that the petitioner resigned from his earlier post of assistant teacher on his own accord and joined the post of subject teacher in economics [2nd post) in the same school. the post was withdrawn from another school and allocated to jalukbari hs school and the same had retention only upto march, 1996 and accordingly the petitioner received his salary only upto march 1996. since there has been no retention of the post, the petitioner could not be paid his salary. the post was considered to be in the excess category and had no retention beyond march 1996.10. in the second affidavit filed on 18th december, 2006, while reiterating the stand in the earlier affidavit, it has been stated that since the petitioner is not serving against any post, he is not entitled to receive salary. it has further been stated that the petitioner was appointed in violation of the rules.11. from the above stand of the director of secondary education, what has emerged is that, the petitioner resigned from his earlier service of assistant teacher of his own accord and joined the post of subject teacher to which post he was appointed without following the recruitment rules. he was appointed on temporary basis, which had no retention beyond march 1996. this position was also known to the petitioner as will be evident from the averments made in the writ petition as well as the time to time representations submitted by him. it is the specific stand of the respondents that since the petitioner was not appointed following the recruitment rules and the services rendered by him being against nonexistent post, he is not entitled to receive salary. on the other hand it is the case of the petitioner that irrespective of validity or otherwise of his appointment, since he has rendered services, the respondents are duty bound to pay salary to him either by creating post or by adjusting his service with another post.12. it is settled law that once statutory rules have been made, the appointment has to be in accordance with such rules. recruitment made in violation of the rules is always illegal. an appointment made in violation of statutory rules does not confer any constitutional right. further, an appointment will be ineffective if the power to make appointment is under suspension. in the instant case, the petitioner was appointed temporarily against a post, which had its sanction, and retention only upto march 1996. thus the continuation of the petitioner in so called service beyond march 1996, even if has been allowed by the respondents, is ineffective and without any authority.13. in the case of regular appointment, the conditions precedent for initiation of the process of recruitment are the existence of posts and vacancies for such posts. it is settled law that creation of posts is a matter of executive or legislative policy see : (1997)illj708sc commissioner corporation of madrass v. madrass corporation teachers' mandram and ors. it is also obvious that without the existence of posts or vacancies in such posts, the question of recruitment would not arise. it is also well settled that generally the employer is not bound to fill up any posts or post. whether a particular vacancy or what number of vacancies will be filled, is a managerial function depending upon administrative necessity. as has been held by the apex court in ashok kumar v. chairman banking service recruitment board reported in : (1996)illj1103sc the practice of making any appointments in excess of notified vacancies would result in violation of articles 14 and 16 of the constitution of india and so also where appointments are made in excess of sanctioned post. also see : (1997)iillj856sc ashwini kumar v. state of bihar.14. in case of a government servant, the tenure of office would generally depend upon the nature of the post held by him. fr 9 (22) defines a 'permanent posts' as a post carrying a definite rate of pay sanctioned without limit of time. fr 9 (30) defines 'temporary posts' as a post carrying a definite rate of pay sanctioned for a limited time. in case of appointment to a temporary post, the maximum tenure of such a post would be the limited time for which the post has been sanctioned. the tenure of a temporary appointee, as in the instant case would be the specific period of time for which the post has been created. while it is true that an appointment to a temporary post for a certain specified . period also gives the servant so appointed, a right to hold the post for the entire period of his tenure and his tenure cannot be put to an end to during that period unless he is, by way of punishment, dismissed or removed from service, an appointment to a temporary post on temporary basis does not give the servant so appointed any right to the post. in the instant case, the post to which the petitioner was appointed ceased to exist from march 1996 and the very appointment of the petitioner to the post also ceased to exist from march 1996. mere continuation of the petitioner in the school, not against any post, which is also within the knowledge of the petitioner cannot confer any right on him so as to pray for a mandamus for creation of post and/or adjustment of his service and also for payment of salary from april 1996. it will also have to be born in mind that the petitioner was not appointed with any valid sanction behind it.15. the prayer made in the writ petition is for regularization of the services of the petitioner and to release his arrear salary stated to be payable from june 1996. the prayer for regularization has obviously been made by the petitioner knowing it well that his initial appointment was illegal and that he has been continuing in his service without any post. regularization in service connotes official formalization of an appointment, which was made on a temporary or ad hoc or stopgap or casual basis or the like in deviation from the normal rules or applicable norms of appointment.16. the petitioner after having resigned from his earlier service to earn the illegal appointment against a temporary post cannot now pray for automatic regularization of his service. the apex court in secretary state of karnataka v. umadevi reported in : (2006)iillj722sc has expressed serious concern in making illegal appointment bypassing the constitutional scheme. dealing with the power and jurisdiction of the writ court under article 226 of the constitution of india, it has been observed that the wide powers under article 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties. adverse effect of trying to individualize justice on inconsistence precedence has also been noticed. it has further been observed that any direction for regularisation of service amounts to creating another mode of public employment, which is not permissible. it has further been emphasized that the wide powers under article 226 are not intended to be used for issuance of such direction, certain to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment.17. the apex court in the case of suraj prakash gupta v. state of j&k; reported in : air2000sc2386 noticing the recent trend of cases held that the recruitment rules cannot be relaxed. it emphasized on the need of requiring strict conformity with the recruitment rules for both direct recruits and promotees. the wholesale regulation order by way of implied relaxation of the recruitment rules was held to be invalid. it was held that the power to relax the rules cannot be treated as wise enough to include a power to relax rules of recruitment. even for relaxation, the reasons are required to be recorded and even if such reasons are recorded, it was emphasized that the recruitment rules themselves cannot be treated to be producing hardship and bypassed on that ground.18. similar view has been expressed in principal, mehar chand polytechnic and anr. v. anu lamba and ors. reported in : air2006sc3074 . it has been observed, thus:16. public employment is a facet of right to equality envisaged under article 16 of the constitution of india. the state although is a model employer, its right to create posts and recruit people therefore emanates from the statues or statutory rules and/or rules framed under the proviso appended to article 309 of the constitution of india. the recruitment rules are framed with a view to give equal opportunity to all the citizens of india entitled for being considered for recruitment in the vacant posts.17. parliament for giving effect to the provisions of article 16 of the constitution enacted the employment exchanges (compulsory notification of vacancies) act, 1959. the statues and the statutory rules framed by the union and other states also invariably require issuance of public notices so as to enable all eligible candidates to file applications thereof. the constitution and/or statues or statutory rues do not make any distinction between post and posts. the requirement process for all posts is the same.18. in a large number of cases, this court noticed that the holders of public posts had been making recruitments in total violation of the recruitment process. in regard to the question of regularization also, different orders had been passed by different benches. some benches pointed out that the equality doctrine enshrined in articles 14 and 16 of the constitution of india had been grossly violated by the authorities, and the provisions of the recruitment rules were given a compete goby. even the beneficent provisions of the reservation applicable to the backward classes of people had not been adhered to.21. the constitution bench of this court while answering some of the said questions in no uncertain terms held that any appointment made in violation of the statue or in derogation of the equality clause contained in articles 14 and 16 of the constitution would be void and of no effect. it was opined that such persons who had obtained such illegal appointments were not entitled to claim regularization.19. in the case of accounts officer a&d; a.p. srtc and ors. v. p. chandra sekhara rao and ors. reported in (2006) 7 scc 488 reference has been made to the aforesaid decision of umadevi as well as the decision of the apex court in a. umarani v. registrar of the cooperative societies reported in : (2004)iiillj780sc in which it has been categorically observed that:no regularization is, thus, permissible in exercise of the statutory power conferred under article 162 of the constitution if the appointments have been made in contravention of the statutory rules20. in the aforesaid decision of p. chandra sekhara rao (supra) the apex court has observed that no direction for regularization could have been made on the basis of the guidelines issued, which in any event could not have been made even in terms of article 162 of the constitution of india. in the case of a. umarani (supra) involving appointment of a large number of employees without notifying the vacancies to the employment exchanges and without following other mandatory provisions of the rules relating to recruitment and without even following the reservation policy of the state as in the instant case, the apex court held that the state cannot invoke the power under article 162 of the constitution to regularise such appointments. it has further been observed that regularization cannot give permanence to an employee whose service is ad hoc in nature. referring to the decision in the state of u.p. v. u.p. state law officers reported in : [1994]1scr348 it has been observed that it is equally well settled that those who come by back door should go through that door.21. the apex court in the said case of a. umarani further held:if the appointment itself is in infraction of the rules or it is in violation of the provisions of the constitution illegality cannot be regularised. ratification or regularization is possible of an act which is 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. regularization 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 setting at naught the rules.22. in view of the above, factual and legal aspects of the matter, i am of the considered opinion that no direction as such for regularization of the services of the petitioner and/or adjustment of his service against any sanctioned post which will virtually amount to issuing a direction for appointment of the petitioner dehorse the rules, cannot be issued exercising power under article 226 of the constitution of india. same is the case in respect of the prayer for payment of arrear salary from june 1996. the petitioner knowing fully well that he has been appointed against a temporary post with temporary sanction behind it, of his own volition continued to remain in the school and now after 10 years, he cannot pray for release of his arrear salary. the writ court cannot be a party to such an illegality so as to issue a direction for release of salary of the petitioner for the last 10 years when the fact remains that such service of the petitioner is not against any post.23. there is another aspect of the matter. the claim of the petitioner for arrear salary is also barred by limitation. the claim is hit by the principles of delay and laches. by filing the writ petition in 2006 (28.9.2006), the petitioner has claimed salary from june 1996. even in case of claim for correct fixation of pay, it has been held by the apex court in mr. gupta v. union of india reported in : air1996sc669 that the claim for recovery of arrears calculated on the basis of difference of pay which has become time barred would not be recoverable.24. in view of the above, no relief can be granted to the petitioner in the frame work in which the writ petition has been made with the prayers indicated above. consequently, the writ petition is dismissed. there shall be no order as to costs.

Judgment:

B.K. Sharma, J.

1. Heard Mr. M.A. Sheikh, learned Counsel for the petitioner as well as Ms. M. Gogoi, learned Standing Counsel, Education Department.

2. By means of this writ petition the petitioner has prayed for a direction to the respondents to release his monthly salary stated to be payable from June 1996. This prayer has been made by filing the writ petition on 28.9.2006.

3. The petitioner is an MA in Economics and he was first appointed as Assistant Teacher in the school called Jaluknbari Girls High School in the district of Kamrup on 1.6.1987. The petitioner has not annexed the copy of the order of appointment, but has annexed the copy of the certificate dated 20.7.1992 issued by the Headmistress of the School certifying his services in the school as an Assistant Teacher from 1st June, 1987. Thus it is not known as to on what basis he was so appointed. It appears that the services of the teachers of the school were provincialised by Annexure-2 order dated 8.4.1993 including that of the petitioner. In the order of provincialisation the date of appointment of the petitioner was indicated as 1.11.1989. However, this aspect of the matter need not detain us, since the controversy involved is in respect of the subsequent appointment of the petitioner as Subject Teacher in the same school in 1995.

4. The petitioner was appointed temporarily as Subject Teacher in Economics in the same school against a post allotted to the school withdrawing the same from another school in the District of North Lakhimpur. It will be pertinent to mention here that a regular post of Subject Teacher in Economics in the school was withdrawn alongwith the incumbent upon her transfer to another school namely Panbazar Girls HS School.

5. The appointment of the petitioner as Subject Teacher in the school was admittedly without following the due procedure of recruitment as per rules. There was no advertisement, no selection and the petitioner was simply appointed on temporary basis against a temporary post allotted to the school upon withdrawal of the same from another school. This aspect of the matter has been fairly admitted by the learned Counsel for the petitioner.

6. The petitioner after his aforesaid appointment received his salary upto May 1996 and since June 1996, he has not been paid his salary. In the writ petition, it has been admitted by the petitioner that he could not be paid his salary since the Government has not retained the post against which he was appointed. However, the petitioner, as stated in the writ petition has been continuing in his service without any post/retention of the post. Nothing has been stated in the writ petition as to what the petitioner did when he did not receive his salary from June 1996. In paragraph 7 of the writ petition, he has stated that he appeared before the Screening Committee constituted by the Government of Assam for the purpose of screening the Subject Teachers working against non-existent posts.

7. By Annexure-7 letter dated 30.12.1999 the Joint Director of Secondary Education, Assam furnished the particulars regarding appointment of the petitioner alongwith another to the Secretary to the Government of Assam in the Education Department. In the letter, it was clearly indicated that the incumbents named therein including the petitioner were appointed against non-existent posts as detected by the Screening Committee.

8. After the aforesaid position the petitioner still continued in his service, admittedly not against any post. He made time-to-time representations as reflected in Annexure-9, 9A and 9B dated 8.12.2000,11.9.2001 and 1.2.2002 respectively. Such representations were followed by further representations made by the petitioner vide Annexcures 11, 11A and 11B dated 2.6.2003, 23.6.2003 and 29.12.2003 addressed to the Minister, Finance and the Minister, Education. In all the representations the petitioner made prayer for adjustment of his service against any post. Thus, it was known to him that he had been continuing in service without any post.

9. The Director of Secondary Education, Assam has filed two counter affidavits. In the first affidavit filed on 17th November, 2006 it has been stated that the petitioner resigned from his earlier post of Assistant Teacher on his own accord and joined the post of Subject Teacher in Economics [2nd post) in the same school. The post was withdrawn from another school and allocated to Jalukbari HS School and the same had retention only upto March, 1996 and accordingly the petitioner received his salary only upto March 1996. Since there has been no retention of the post, the petitioner could not be paid his salary. The post was considered to be in the excess category and had no retention beyond March 1996.

10. In the second affidavit filed on 18th December, 2006, while reiterating the stand in the earlier affidavit, it has been stated that since the petitioner is not serving against any post, he is not entitled to receive salary. It has further been stated that the petitioner was appointed in violation of the rules.

11. From the above stand of the Director of Secondary Education, what has emerged is that, the petitioner resigned from his earlier service of Assistant Teacher of his own accord and joined the post of subject teacher to which post he was appointed without following the recruitment rules. He was appointed on temporary basis, which had no retention beyond March 1996. This position was also known to the petitioner as will be evident from the averments made in the writ petition as well as the time to time representations submitted by him. It is the specific stand of the respondents that since the petitioner was not appointed following the recruitment rules and the services rendered by him being against nonexistent post, he is not entitled to receive salary. On the other hand it is the case of the petitioner that irrespective of validity or otherwise of his appointment, since he has rendered services, the respondents are duty bound to pay salary to him either by creating post or by adjusting his service with another post.

12. It is settled law that once statutory rules have been made, the appointment has to be in accordance with such rules. Recruitment made in violation of the rules is always illegal. An appointment made in violation of statutory rules does not confer any constitutional right. Further, an appointment will be ineffective if the power to make appointment is under suspension. In the instant case, the petitioner was appointed temporarily against a post, which had its sanction, and retention only upto March 1996. Thus the continuation of the petitioner in so called service beyond March 1996, even if has been allowed by the respondents, is ineffective and without any authority.

13. In the case of regular appointment, the conditions precedent for initiation of the process of recruitment are the existence of posts and vacancies for such posts. It is settled law that creation of posts is a matter of executive or legislative policy see : (1997)ILLJ708SC Commissioner Corporation of Madrass v. Madrass Corporation Teachers' Mandram and Ors. It is also obvious that without the existence of posts or vacancies in such posts, the question of recruitment would not arise. It is also well settled that generally the employer is not bound to fill up any posts or post. Whether a particular vacancy or what number of vacancies will be filled, is a managerial function depending upon administrative necessity. As has been held by the Apex Court in Ashok Kumar v. Chairman Banking Service Recruitment Board reported in : (1996)ILLJ1103SC the practice of making any appointments in excess of notified vacancies would result in violation of articles 14 and 16 of the Constitution of India and so also where appointments are made in excess of sanctioned post. Also see : (1997)IILLJ856SC Ashwini Kumar v. State of Bihar.

14. In case of a Government servant, the tenure of office would generally depend upon the nature of the post held by him. FR 9 (22) defines a 'permanent posts' as a post carrying a definite rate of pay sanctioned without limit of time. FR 9 (30) defines 'temporary posts' as a post carrying a definite rate of pay sanctioned for a limited time. In case of appointment to a temporary post, the maximum tenure of such a post would be the limited time for which the post has been sanctioned. The tenure of a temporary appointee, as in the instant case would be the specific period of time for which the post has been created. While it is true that an appointment to a temporary post for a certain specified . period also gives the servant so appointed, a right to hold the post for the entire period of his tenure and his tenure cannot be put to an end to during that period unless he is, by way of punishment, dismissed or removed from service, an appointment to a temporary post on temporary basis does not give the servant so appointed any right to the post. In the instant case, the post to which the petitioner was appointed ceased to exist from March 1996 and the very appointment of the petitioner to the post also ceased to exist from March 1996. Mere continuation of the petitioner in the school, not against any post, which is also within the knowledge of the petitioner cannot confer any right on him so as to pray for a mandamus for creation of post and/or adjustment of his service and also for payment of salary from April 1996. It will also have to be born in mind that the petitioner was not appointed with any valid sanction behind it.

15. The prayer made in the writ petition is for regularization of the services of the petitioner and to release his arrear salary stated to be payable from June 1996. The prayer for regularization has obviously been made by the petitioner knowing it well that his initial appointment was illegal and that he has been continuing in his service without any post. Regularization in service connotes official formalization of an appointment, which was made on a temporary or ad hoc or stopgap or casual basis or the like in deviation from the normal rules or applicable norms of appointment.

16. The petitioner after having resigned from his earlier service to earn the illegal appointment against a temporary post cannot now pray for automatic regularization of his service. The Apex Court in Secretary State of Karnataka v. Umadevi reported in : (2006)IILLJ722SC has expressed serious concern in making illegal appointment bypassing the constitutional scheme. Dealing with the power and jurisdiction of the Writ Court under Article 226 of the Constitution of India, it has been observed that the wide powers under Article 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties. Adverse effect of trying to individualize justice on inconsistence precedence has also been noticed. It has further been observed that any direction for regularisation of service amounts to creating another mode of public employment, which is not permissible. It has further been emphasized that the wide powers under Article 226 are not intended to be used for issuance of such direction, certain to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment.

17. The Apex court in the case of Suraj Prakash Gupta v. State of J&K; reported in : AIR2000SC2386 noticing the recent trend of cases held that the recruitment rules cannot be relaxed. It emphasized on the need of requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The wholesale regulation order by way of implied relaxation of the Recruitment Rules was held to be invalid. It was held that the power to relax the Rules cannot be treated as wise enough to include a power to relax rules of recruitment. Even for relaxation, the reasons are required to be recorded and even if such reasons are recorded, it was emphasized that the recruitment rules themselves cannot be treated to be producing hardship and bypassed on that ground.

18. Similar view has been expressed in Principal, Mehar Chand Polytechnic and Anr. v. Anu Lamba and Ors. reported in : AIR2006SC3074 . It has been observed, thus:

16. Public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India. The State although is a model employer, its right to create posts and recruit people therefore emanates from the statues or statutory rules and/or rules framed under the proviso appended to Article 309 of the Constitution of India. The recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts.

17. Parliament for giving effect to the provisions of Article 16 of the Constitution enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. The statues and the statutory rules framed by the Union and other States also invariably require issuance of public notices so as to enable all eligible candidates to file applications thereof. The Constitution and/or statues or statutory rues do not make any distinction between post and posts. The requirement process for all posts is the same.

18. In a large number of cases, this court noticed that the holders of public posts had been making recruitments in total violation of the recruitment process. In regard to the question of regularization also, different orders had been passed by different Benches. Some Benches pointed out that the equality doctrine enshrined in Articles 14 and 16 of the Constitution of India had been grossly violated by the authorities, and the provisions of the recruitment rules were given a compete goby. Even the beneficent provisions of the reservation applicable to the backward classes of people had not been adhered to.

21. The Constitution Bench of this Court while answering some of the said questions in no uncertain terms held that any appointment made in violation of the statue or in derogation of the equality clause contained in Articles 14 and 16 of the Constitution would be void and of no effect. It was opined that such persons who had obtained such illegal appointments were not entitled to claim regularization.

19. In the case of Accounts Officer A&D; A.P. SRTC and Ors. v. P. Chandra Sekhara Rao and Ors. reported in (2006) 7 SCC 488 reference has been made to the aforesaid decision of Umadevi as well as the decision of the Apex Court in A. Umarani v. Registrar of the Cooperative Societies reported in : (2004)IIILLJ780SC in which it has been categorically observed that:

No regularization is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules

20. In the aforesaid decision of P. Chandra Sekhara Rao (supra) the Apex Court has observed that no direction for regularization could have been made on the basis of the guidelines issued, which in any event could not have been made even in terms of Article 162 of the Constitution of India. In the case of A. Umarani (supra) involving appointment of a large number of employees without notifying the vacancies to the Employment Exchanges and without following other mandatory provisions of the rules relating to recruitment and without even following the reservation policy of the State as in the instant case, the Apex Court held that the State cannot invoke the power under Article 162 of the Constitution to regularise such appointments. It has further been observed that regularization cannot give permanence to an employee whose service is ad hoc in nature. Referring to the decision in the State of U.P. v. U.P. State Law Officers reported in : [1994]1SCR348 it has been observed that it is equally well settled that those who come by back door should go through that door.

21. The Apex Court in the said case of A. Umarani further held:

If the appointment itself is in infraction of the rules or it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularization is possible of an act which is 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. Regularization 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 setting at naught the rules.

22. In view of the above, factual and legal aspects of the matter, I am of the considered opinion that no direction as such for regularization of the services of the petitioner and/or adjustment of his service against any sanctioned post which will virtually amount to issuing a direction for appointment of the petitioner dehorse the rules, cannot be issued exercising power under Article 226 of the Constitution of India. Same is the case in respect of the prayer for payment of arrear salary from June 1996. The petitioner knowing fully well that he has been appointed against a temporary post with temporary sanction behind it, of his own volition continued to remain in the school and now after 10 years, he cannot pray for release of his arrear salary. The Writ Court cannot be a party to such an illegality so as to issue a direction for release of salary of the petitioner for the last 10 years when the fact remains that such service of the petitioner is not against any post.

23. There is another aspect of the matter. The claim of the petitioner for arrear salary is also barred by limitation. The claim is hit by the principles of delay and laches. By filing the writ petition in 2006 (28.9.2006), the petitioner has claimed salary from June 1996. Even in case of claim for correct fixation of pay, it has been held by the Apex Court in MR. Gupta v. Union of India reported in : AIR1996SC669 that the claim for recovery of arrears calculated on the basis of difference of pay which has become time barred would not be recoverable.

24. In view of the above, no relief can be granted to the petitioner in the frame work in which the writ petition has been made with the prayers indicated above. Consequently, the writ petition is dismissed. There shall be no order as to costs.