Vipin Sanghi, CJ
1. These three special appeals arise out of identical or similar orders passed by the learned Single Judge in a batch of writ petitions, preferred by the
respondents-writ petitioners. The limited challenge raise in these appeals is to the direction issued by the learned Single Judge staying the termination
orders in respect of the respondents-writ petitioners, and directing that they shall be allowed to work and be paid the remuneration as before, i.e.
before their termination.
2. In the years 2016, 2020 and 2021, ad hoc appointments were made by the State Government to the various posts in the Vidhan Sabha Secretariat.
It appears that in relation to the said appointments, a writ petition, being Writ Petition (PIL) No.66 of 2017, was filed by one Mr. Rajesh Chandola to
challenge the same. These appointments were made on ad hoc basis. Admittedly, they were made without calling for applications from the public at
large, and without following a transparent method of recruitment. The Division Bench of this Court disposed of the said writ petition. In the course of
the judgment, the Division Bench observed in Paragraph No.15 that “the said appointments had not been made by the Selection Committee, as
contemplated under Rule 17 (1) of the Uttarakhand Vidhan Sabha Secretariat Service (Recruitment and Conditions of Service) Rules,
2011.†The direction issued by the Court in Paragraph No.29 of the said judgment, inter alia, was to the effect that the regimen of Rule 17 of the
aforesaid Rules could not have been violated. The respondents were, therefore, required to look into the appointments made in regard to the category
of Assistant Review Officer and Additional Private Secretary.
3. It appears that the learned Speaker of the Legislative Assembly received complaints alleging completely illegal and arbitrary manner, in which, ad
hoc appointments have been made in the years 2016, 2020 and 2021, and the learned Speaker constituted a Three Member Committee to examine the
said appointments. The Committee made its report on 20.09.2022. The findings returned by the Committee in the said report, inter alia, read as
follows:-
4. On the basis of the aforesaid report, the letters of termination were issued to the respondents-writ petitioners. In all 228 appointments which were
made on ad hoc basis dehors not only just the Rules, but also the minimum required compliance of norms of transparency, were terminated.
Following the termination, the aforesaid writ petitions were preferred by the respondents, in which, same and similar impugned orders came to be
passed by the learned Single Judge.
5. As aforesaid, the learned Single Judge has stayed the termination and directed the appellant-Vidhan Sabha to pay the salaries to the writ petitioners
and also to take services from them. To that limited extent, the appellants are aggrieved, and assail the impugned order before us.
6. Mr. A.S. Rawat, learned Senior Counsel, who appears on advance notice on behalf of the respondents-writ petitioners has, firstly, argued that the
present special appears should not be entertained in the light of the judgment of the Full Bench of the Allahabad High Court in the case of
“Ashutosh Sahotriya & others vs. Vice Chancellor, Dr. B.R. Ambedkar University Agra & othes, Special Appeal No.1140 of 2008 and
other connected special appeals, dated 04.09.2015.†The issues considered by the Full Bench in the said judgment were as follows:-
“(1) Where a learned Single Judge while hearing a writ petition calls for counter and rejoinder affidavits, but does not pass any order
or refusing a stay, will the order amount to a refusal of interim relief to the petitioner either temporarily or impliedly and a ‘judgment’
within the meaning of Chapter VIII Rule 5 of the Rules of the Court, 1952;
(2) Does an order which adversely affects the valuable rights of a party by a temporary or implied refusal of interim relief have the
trappings of a judgment.â€
7. The said judgment has no relevance in the present fact situation, since the learned Single Judge has passed the interim order after hearing learned
counsels, and after the appellants had filed their counter-affidavits. The learned Single Judge has granted the interim relief to the respondents-writ
petitioners, as taken note hereinabove. The said preliminary objection of Mr. Rawat is, therefore, rejected.
8. The submission of learned counsel for the appellants is that the grant of interim stay of the termination by the learned Single Judge is contrary to the
law laid down by the Supreme Court against grant of such interim relief, apart from it being unjustified even on, prima facie, evaluation of the case.
Firstly, learned counsel points out that on 06.02.2003, the State had imposed a complete ban on making of ad hoc appointments. The order issued in
this regard, inter alia, states as follows:-
9. He submits that the ad hoc appointments granted to the employees in the year 2016, 2020 and 2021, were so grated on the basis of, more or less,
identical applications. A sample of one such application has been produced before us, which reads as follows:-
10. It is argued that the applicant did not even apply against any particular post, and stated that “he be appointed against any post available.â€
This application is also undated. On the said application, orders were issued by the then Speaker directing the Secretary to make appointment of the
applicant- Mr. Bhupendra Singh Bisht, as the Additional Private Secretary. As aforesaid, no applications were invited; no public notice issued; no
screening or selection process held.
11. Learned counsel for the appellant, however, points out that in respect of six applicants, who had applied for the post of Driver, in their applications,
they had stated that they be appointed as Drivers against the vacancies for the said post.
12. Learned counsel has also referred to the office note dated 22.12.2016, prepared by the Vidhan Sabha Secretariat, taking note of the ban on ad
hoc appointments. The relevant office note referred to by learned counsel for the appellants reads as follows:-
(emphasis supplied)
13. On the aforesaid office note, the then Speaker directed that stopgap arrangement be made by making appointments on ad hoc basis.
14. Attention has also been drawn to the appointment letters issued to such ad hoc appointees which, inter alia, stated that “the ad hoc
appointment could be terminated at any point of time without prior intimation.†The said communications, inter alia, stated as follows:-
(emphasis supplied)
15. Learned counsel submits that the Personnel Department of the Government of Uttarakhand objected to the said appointments, pointing out that the
same would be illegal. The relevant office note dated 04.01.2017 of the Personnel Department, inter alia, states as follows:-
(emphasis supplied)
16. The Personnel department specifically referred to the celebrated judgment of the Supreme Court in Uma Devi to state that such ad hoc
appointments without following a transparent procedure would be illegal.
17. Even the Finance Department had similarly raised objections wherein, the Department, inter alia, states as follows:-
18. However, the then Chief Minister on 04.01.2017, granted approval to make such ad hoc appointments, disregarding the legal objections raised by
the aforesaid departments.
19. Learned counsel for the appellants submits that in the aforesaid light, the appointments of respondents-writ petitioners and others, made on ad hoc
basis without a public process were, completely, illegal.
20. He submits that in any event of the matter, in service jurisprudence stay of a termination order cannot be granted. He has placed reliance, firstly,
on the judgment of the Supreme Court in the case of State of Haryana vs. Suman Dutta, (2000) 10 SCC 311. The Supreme Court in this condition
held as follows:-
“2. This appeal by the State of Haryana is directed against an interim order passed by the High Court of Punjab & Haryana at
Chandigarh in CWP No.10493 of 1998, staying the order of termination. The positive case of the State is that the respondent did not pass
the necessary examination in shorthand and typing. We are not expressing any opinion as to whether the services of an employee could be
terminated for not passing the shorthand and typewriting test, but we are clearly of the opinion that the High Court erred in law in staying
the order of termination as an interim measure in the pending writ petition. By such interim order if any employee is allowed to continue in
service and then ultimately the writ petition is dismissed, then it would tantamount to usurpation of public office without any right to the
same. We, therefore, set aside the impugned order of the High Court staying the order of termination. Needless to mention, the High Court
will decide the writ petition on its own merits without being in any way influenced by our interfering with the impugned order.â€
21. Reliance is also placed on the judgment of the Supreme Court in the case of State of Uttar Pradesh vs. Sandeep Kumar Balmiki, (2009) 17
SCC 555. The Supreme Court observed in Paragraph Nos.5 and 6 of this judgment as follows:-
“5. In our view, the interim order granted by the High Court staying the order of termination could not be passed at this stage in view of
the fact that if such relief is granted at this stage, the writ petition shall stand automatically allowed without permitting the parties to place
their respective cases at the time of final hearing of the writ petition. In this case also, the appellants have not yet filed counter-affidavit to
the writ petition of the respondents.
6. That being the position and in view of the fact that the final relief could not be granted at the interim stage, we set aside the impugned
order and vacate the interim order passed by this High Court.â€
22. Learned counsel for the appellant has also placed reliance on the judgment of the Supreme Court in the case of Renu vs. District & Sessions
Judge, (2014) 14 SCC 50. Reliance is placed on the following paragraphs of this decision.
“5. The rule of law is the basic feature of the Constitution. There was a time when REX was LEX. We now seek to say LEX is REX. It is
axiomatic that no authority is above law and no man is above law. Article 13(2) of the Constitution provides that no law can be enacted
which runs contrary to the fundamental rights guaranteed under Part III of the Constitution. The object of such a provision is to ensure that
instruments emanating from any source of law, permanent or temporary, legislative or judicial or any other source, pay homage to the
constitutional provisions relating to fundamental rights. Thus, the main objective of Article 13 is to secure the paramountcy of the
Constitution, especially with regard to the fundamental rights. The aforesaid provision is in consonance with the legal principle of “rule
of law†and they remind us of the famous words of the English jurist, Henry de Bracton â€" “The King is under no man but under God
and the Lawâ€. No one is above law. The dictum â€" “Be you ever so high, the law is above you†is applicable to all, irrespective of his
status, religion, caste, creed, sex or culture. The Constitution is the supreme law. All the institutions, be it legislature, executive or judiciary,
being created under the Constitution, cannot ignore it. The exercise of powers by an authority cannot be unguided or unbridled as the
Constitution prescribes the limitations for each and every authority and therefore, no one, howsoever high he may be, has a right to exercise
the power beyond the purpose for which the same has been conferred on him. Thus, the powers have to be exercised within the framework of
the Constitution and legislative provisions, otherwise it would be an exercise of power in violation of the basic features of the Constitution i.e.
Part III dealing with the fundamental rights which also prescribes the limitations.
8. As Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment
made in violation of mandate of Articles 14 and 16 of the Constitution is not only irregular but also illegal and cannot be sustained in view of
the judgments rendered by this Court in Delhi Development Horticulture Employees' Union v. Delhi Admn. [(1992) 4 SCC 99 : 1992 SCC
(L&S) 805 : (1992) 21 ATC 386] , State of Haryana v. Piara Singh [(1992) 4 SCC 118 : 1992 SCC (L&S) 825 : (1992) 21 ATC 403] ,
Prabhat Kumar Sharma v. State of U.P. [(1996) 10 SCC 62 : 1996 SCC (L&S) 1331] , J.A.S. Inter College v. State of U.P. [(1996) 10 SCC
71 : 1996 SCC (L&S) 1339] , M.P. Housing Board v. Manoj Shrivastava [(2006) 2 SCC 702 : 2006 SCC (L&S) 422] , M.P. State Agro
Industries Development Corpn. Ltd. v. S.C. Pandey [(2006) 2 SCC 716 : 2006 SCC (L&S) 434] and State of M.P. v. Sandhya Tomar [(2013)
11 SCC 357].
9. In Excise Supt. v. K.B.N. Visweshwara Rao [(1996) 6 SCC 216 : 1996 SCC (L&S) 1420] , a larger Bench of this Court reconsidered its
earlier judgment in Union of India v. N. Hargopal [(1987) 3 SCC 308 : 1987 SCC (L&S) 227 : (1987) 4 ATC 51 : AIR 1987 SC 1227] ,
wherein it had been held that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed
by Articles 14 and 16 of the Constitution. However, due to the possibility of non- sponsoring of names by the employment exchange, this
Court held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the said provisions of the
Constitution and even if the names of candidates are requisitioned from employment exchange, in addition thereto, it is mandatory on the
part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the employment
exchange does not meet the requirement of the said articles of the Constitution. The Court further observed: (K.B.N. Visweshwara Rao case
[(1996) 6 SCC 216 : 1996 SCC (L&S) 1420] , SCC p. 218 para 6)
“6. … In addition, the appropriate department … should call for the names by publication in the newspapers having wider circulation
and also display on their office notice … and employment news bulletins; and then consider the cases of all candidates who have applied. If
this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all
eligible candidates.†(emphasis supplied)
(See also Arun Tewari v. Zila Mansavi Shikshak Sangh [(1998) 2 SCC 332 : 1998 SCC (L&S) 541 : AIR 1998 SC 331] and Kishore K. Pati
v. District Inspector of Schools, Midnapore [(2000) 9 SCC 405 : 2001 SCC (L&S) 87].
10. In Suresh Kumar v. State of Haryana [(2003) 10 SCC 276] this Court upheld the judgment of the Punjab and Haryana High Court
wherein 1600 appointments made in the Police Department without advertisement stood quashed though the Punjab Police Rules, 1934 did
not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no
advertisement and due publicity for inviting applications from the eligible candidates at large.
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v.
Nanuram Yadav [(2007) 8 SCC 264 : (2007) 2 SCC (L&S) 883] as under: (SCC pp. 274-75, para 24)
“(1) The appointments made without following the appropriate procedure under the rules/government circulars and without
advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational
qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the
appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been
unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each
selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire
selection has to be set aside.
13. A similar view has been reiterated by the Constitution Bench of this Court in State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006
SCC (L&S) 753 : AIR 2006 SC 1806] , observing that any appointment made in violation of the statutory rules as also in violation of Articles
14 and 16 of the Constitution would be a nullity. “Adherence to Articles 14 and 16 of the Constitution is a must in the process of public
employment.†The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a
course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to compete.
14. In State of Orissa v. Mamata Mohanty [(2011) 3 SCC 436 : (2011) 2 SCC (L&S) 83] this Court dealt with the constitutional principle of
providing equality of opportunity to all which mandatorily requires that vacancy must be notified in advance meaning thereby that
information of the recruitment must be disseminated in a reasonable manner in public domain ensuring maximum participation of all
eligible candidates, thereby the right of equal opportunity is effectuated. The Court held as under: (SCC p. 452, para 36)
“36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting
applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a
note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates
of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person
employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory
compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such
appointment be made by an open advertisement as to enable all eligible persons to compete on merit.â€
(emphasis supplied)
23. In so far as the impugned order is concerned, learned counsel for the appellant submits that the learned Single Judge has not considered the aspect
of prima facie case, balance of convenience and irreparable loss and injury to the appellants while granting interim relief to the respondents-writ
petitioners.
24. He submits that so far as the aspect of prima facie case is concerned, the learned Single Judge has misdirected himself by observing that there is
no deficiency in the working of the respondents-writ petitioners. He submits that this was not at all relevant consideration. The learned Single Judge,
prima facie, found substance in the contention of the respondents-writ petitioners, that since there is no procedure prescribed for ad hoc
appointments, therefore, the termination of the services of the writ petitioners, who were ad hoc appointees, only on the ground of non-observance of
the procedure provided in the Rules, would be unjust. He submits that, prima facie, this finding is contrary to the aforesaid judgments of the Supreme
Court, inter alia, in laying down that such ad hoc appointment, which are made without following the transparent method, i.e. by granting the
opportunity of participation to all eligible candidates, is not just illegal, but a nullity and backdoor appointees should go back from the same door. He
further submits that the learned Single Judge also fell in error in observing that “Whether reason supplied through counter-affidavit can be
considered while adjudicating the question of validity of termination order(s), or not is a debatable question.†In this regard, he submits that
in the case of Chairman, All India Railway Recruitment Board & another vs. K. Shyam Kumar & others, (2010) 16 SCC 61,4 in Paragraph
Nos.44 and 45, the Supreme Court has held that when larger public interest is involved, the Rules laid down by the Constitution Bench of the Supreme
Court in the case of Mohinder Singh Gill & another vs. Chief Election Commissioner, New Delhi & others, (1978) 1 SCC 40,5 would not be
attracted, and that the State can justify its action on the basis of other materials placed before the Court in its counter-affidavit.
25. Mr. Rawat, learned Senior Counsel for the respondents-writ petitioners, has vehemently opposed the present special appeals. He submits that he is
appearing or the respondents, who were appointed in the year 2016 on ad hoc basis. He submits that the appointments were made in an emergent
situation, since the Government of the day had decided to construct the Vidhan Sabha, and hold its session at Garisain. He further submits that under
the Rules, there is silence insofar as the procedure for making ad hoc appointments is concerned. However, he places reliance on Rules 3( ) and 4(2)
( ) of the Uttarakhand Vidhan Sabha Secretariat Service (Recruitment and Conditions of Service) Rules, 2011, as amended on 04.07.2015. Rule 3()
reads as follows:-
26. Rule 4(2)( ) of the Uttarakhand Vidhan Sabha Secretariat Service (Recruitment and Conditions of Service) Rules, 2011, as amended on
04.07.2015, reads as follows:-
27. The submission of the respondents-writ petitioners is that since there is a procedure prescribed for regularization of services of the ad hoc
appointees, making of ad hoc appointments is permissible under the Rules, even though, there is no express rule for that purpose. He further submits
that such appointments have been made right from the year 2001, i.e. after the State of Uttarakhand is created, but no action has been taken against
the said appointees.
28. We may notice the submission of learned counsel for the appellant in this regard. He submits that such appointees were regularized in service, and
the Speaker is looking into the aspect as to what action can legally be taken in such cases. He submits that there is no concept of negative equality,
and the respondents-writ petitioners have to stand on their own feet and make out a case on merits in their favour.
29. It is further submitted by Mr. Rawat, that the services of the respondents-writ petitioners were terminated without giving any time or notice. The
respondents have become overage, and they have families to support. They have been serving since 2016.
30. We have considered the submissions of learned counsels, and we are of the view that the learned Single Judge fell in error in granting interim stay
of termination of the services of the respondents-writ petitioners. The said interim stay could not have been granted in the face of the judgments
rendered by the Supreme Court, taken note of hereinabove in the cases of Suman Dutta (supra), and Sandeep Kumar Balmiki (supra). The grant
of stay of termination will force the appellants to pay salaries to hundreds of terminated employees and allow them to discharge duties of public office.
If, eventually the writ petitions are dismissed, it would not be possible to undo the actions taken in pursuance of the impugned interim orders. On the
other hand, if the writ petitions are allowed, the respondents-writ petitioners can be restored their appointments and also paid salaries for the periods
they are out of employment.
31. Even on prima facie appreciation, it appears to us that the learned Single Judge, despite observing that the ad hoc appointments were not made
through a public process, failed to appreciate that the respondents-writ petitioners are not even entitled to claim regularization, in the light of the
observations made by the Constitution Bench of the Supreme Court in Umadevi which has been noticed in Paragraph No.13 of the judgment of the
Supreme Court in Renu (supra). Such appointments have been held by the Supreme Court to be not just illegal, but a nullity.
32. The appellants had filed their counter-affidavit, which was before the learned Single Judge when the impugned order was passed. The materials
relied upon by the appellants to state that the appointments were made completely illegally have not been adverted to. We find merit in the submission
of learned counsel for the appellant that the mere fact that there was no complaint about the work of the respondents-writ petitioners, was no ground
to stay their termination. By staying the termination, the respondents-writ petitioners were granted relief in the nature of final relief. Grant of stay of
termination had actually caused irreparable loss and injury to the appellant, inasmuch, as they would have to pay remuneration payable to the
respondents-writ petitioners, and to take work from them when the respondents-writ petitioners may not be entitled to hold the public office.
33. On the other hand, in case the respondents-writ petitioners succeed in their writ petitions, they can adequately be compensated by, inter alia,
directing payment of salaries for the period that they remain out of service.
34. We are, therefore, inclined to set-aside the impugned order to the extent that the learned Single Judge granted stay of the termination of the
respondents-writ petitioners’ services and directed the State to take service from them and continue to pay their salaries.
35. Accordingly, the special appeals are allowed and the impugned order is set-aside to the limited extent, as aforesaid.
36. The learned Single Judge may proceed to dispose of the writ petitions on their own merits. The observations made by us on the merits of the case
have been made for the purpose of dealing with the present appeals, and shall not come in the way of the learned Single Judge in deciding the writ
petitions.
37. Pending application, if any, also stands disposed of.
