Public employment not bounty in hands of State, says HC

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High Court today held that public employment is not a bounty in the hands of State which can be distributed by it arbitrarily.

These observations were made by Justice Sanjeev Kumar while dismissing the petitions challenging cancellations of appointments of petitioners in CAPD Department. “There should be no doubt in the mind of any person that such persons, who come by backdoor, should go through the same door”, Justice Kumar said.

“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”, High Court said, adding “sooner than later, the State needs to understand that public employment is not a bounty in its hands which can be distributed by it arbitrarily and at its whims and caprice”.

Justice Kumar further observed, “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”, adding “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”.

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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 further said.

After hearing Senior Advocate ZA Shah with Advocate Jagpal Singh appearing for the petitioners, Justice Sanjeev Kumar observed, “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.”, adding “it is also true that in the 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 and 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”, Justice Kumar said.

“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,” the court said, adding that 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.

The court made the observations while dismissing a petition by some candidates who were engaged 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.

“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.”