Jharkhand High Court
Ranchi University Through Its … vs Dr. Mrs. Gouri Jilani W/O Dr. Abdul … on 12 June, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.140 of 2023
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Ranchi University through its Registrar, Mukund Chandra
Mehta aged about 58 years, having his residence at 306,
Birendra Sudha Apartment, Kali Mandir Road, Burdwan
Compound, P.O and P.S Lalpur, Dist- Ranchi 834001 and
officiating from his office at O/o Registrar, Ranchi University,
P.O- Kotwali, P.S-GPO, Dist-Ranchi
....... Respondent/Revisionist/Appellant
Versus
1. Dr. Mrs. Gouri Jilani W/o Dr. Abdul Quadir Jilani, R/o
University Colony, Near Block No.07, P.O and PS Bariatu, Dist.-
Ranchi. .... writ Petitioner/Respondent
2. State of Jharkhand.
3. The Director, HRD Department, Higher Education,
Government of Jharkhand, Ranchi, officiating from his office at
Project Bhawan, P.O and P.S Jaganathpur, Dist-Ranchi.
.... .... Respondent/Respondent/Respondent
4. The Hon'ble Chancellor, Ranchi University, officiating from
his office at Raj Bhawan, P.O and P.S Kotwali, Dist-Ranchi.
.... Respondent/Performa Respondent/Performa Respondent
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Prashant Pallav, Advocate
Mr. Parth Jalan, Advocate
Ms. Shivani Jhaluka, Advocate
For the State : Mr. Manish Mishra, GP-V
For Pvt. Respondent : Mr. Indrajit Sinha, Advocate
: Mr. Arpan Mishra, Advocate
------
C.A.V. on 01.05.2025 Pronounced on 12.06.2025
Per Sujit Narayan Prasad, J.
Prayer
1. The instant intra-court appeal preferred under Clause-10
of Letters Patent, is directed against the order dated 09.02.2021
passed by the learned Single Judge of this Court in W.P.(S)
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No.4188 of 2013, whereby and whereunder, the writ petition
has been allowed with a direction upon the
respondent/University (appellant herein) to send appropriate
requisition to the State of Jharkhand for grant of approval for
release of salary in the revised pay-scale to the writ
petitioner(respondent herein) and consequently, the State of
Jharkhand was to approve the revised pay-scale to the
petitioner and provide appropriate fund to Respondent-Ranchi
University for payment of arrear of salary to the petitioner in
the revised pay-scale including payment of post retiral benefit
to the petitioner as per revised U.G.C. pay-scale.
Factual Matrix
2. The brief facts of the case, as per the pleading made in the
writ petition, required to be enumerated, which read as under:
2(i) The writ petitioner was duly appointed as lecturer in the
department of English in the prescribed scale of Rs.700-1600/-
with admissible allowances vide letter no.SC / Appointment /
154(E) /80 dated 10.08.1980 and accordingly, she joined on
11.08.1980 on the said sanctioned post. Subsequently, in the
same year Sindri College was converted into a constituent unit
of Ranchi University, Ranchi and with this petitioner’s service
merged in the University service. Thereafter, the petitioner was
transferred from Sindri College, Sindri to Marwari College,
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Ranchi vide memo No.B/3362-75 dated 06.07.1985.
2(ii). Thereafter, petitioner joined Marwari College, Ranchi as a
lecturer, Department of English and the petitioner continuously
worked without any break till her retirement on 31.08.2017. In
the meantime, petitioner has completed two orientation courses
in 1994 and 1998 and got Ph.D degree from Ranchi University
in 1999. Thereafter, she again attended one refresher course in
2002. She also served as Hostel Superintendent, P.G. Girls
Hostel from 02.01.1991 to 1995.
2(iii). It is the case of the petitioner that a Statute, being
Statute of 1986, known as ‘Statute for regularization of services
of temporary Lecturers who were appointed on or before
28.02.1982, was approved by the Hon’ble Chancellor of Ranchi
University on 29.01.1986 and, thereafter, Screening Committee
was constituted by Ranchi University for regularization of
teachers for the newly taken-over Constituent Colleges.
However, unfortunately, the candidature of the Petitioner was
not placed before the Screening Committee with relevant
documents and details. However, the services of other similarly
situated persons with that of the petitioner were regularized
and absorbed pursuant to the Statute of 1986.
2(iv). It is the further case of the writ petitioner that she was
regularly performing her duties of Lecturer at Marwari College,
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which has become a Constituent College of Ranchi University,
and was regularly paid her salary in the pay scale, which was
4th revised U.G.C. pay-scale, of Rs. 2000-4000/-. Thereafter
vide memo No.B/6717 dated 21.04.2001, and Vide memo No.
B/310/09 dated 18.04.2009 and vide memo No. B/323/2010
dated 04.05.2010, respondent University requested the
authority like Secretary HRD, Department, Govt. of Jharkhand
and OSD (J) Governor Secretariat, Jharkhand for nomination of
Government Member in the Screening Committee and
expediting the matter of absorption / regularization of the
services of left out temporary teachers due to procedural delay.
During that period, the Chancellor Secretariat Vide D.O Letter
No. 495/PSG dated 17.04.2001 and No.G.S/1576/12 dated
02.05.2012 also took certain steps for nomination of Govt.
Member to the Screening Committee and convening of the
meeting of the said Committee for absorption /regularization of
the temporary teachers.
3. The writ petitioner made representation for
absorption/regularization of her service vide letter dated
10.06.2013 wherein it has been stated that the case of the
petitioner is squarely covered by the statutory provisions and as
such her service may be considered.
4. However, the concerned respondent has not given any
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heed to cause of the writ petitioner, then the writ petitioner for
redressal of her grievances had preferred a writ petition being
W.P.(S) 4188 0f 2013 before the learned writ Court.
5. Before the learned writ Court, the counter affidavit has not
been filed by the University and the learned counsel for the
university has submitted that Ranchi University has not taken
any reverse stand and as such did not file any counter affidavit.
6. The said writ petition being W.P.(S) No.4188 of 2013 which
had been filed by respondent-writ petitioner seeking therein the
direction of absorption/regularization of her service w.e.f.
11.08.1980 on the basis of statute dated 29.01.1986. The said
writ petition was disposed of vide order dated 09.02.2021 with
the following directions: –
“10. In view of the cumulative facts and
circumstances mentioned hereinabove, the
respondent University; who is alone competent to
confirm/regularize the services of the employees of
the newly converted constituent colleges and it has
already decided to confirm / regularize the services
of this petitioner, inasmuch as, twice it has
requested the authority of the State including OSD
(J) Governor Secretariat, Jharkhand for nomination
of Government Member in the Screening Committee
and expediting the matter of absorption /
regularization of the services of left out temporary
teachers due to procedural delay, shall pass a
formal order of regularization of this writ petitioner5 LPA No.140/2023
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and accordingly the benefit of revision of pay-scale
in 5th, 6th and 7th U.G.C. revised pay-scale be
extended to the Petitioner. If the Petitioner is found
entitled for payment of arrear salary with effect from
11.08.1980 till the date of retirement as per the
revised pay-scale, which has been implemented
from time to time in the State of Jharkhand, the
same shall also be extended in her favour.
Since the Petitioner had already
superannuated from service with effect from
31.08.2017, the petitioner is further entitled for
computation of her post retiral benefits on the basis
of the revised pay-scale which would be applicable
on the date of her retirement and, accordingly, all
post retiral benefits be disbursed to the Petitioner
after revising her pay-scale.
11. The Respondent-Ranchi University is directed to
send appropriate requisition to the State of
Jharkhand for grant of approval for release of salary
in the revised payscale to the Petitioner and,
consequently, the State of Jharkhand is directed to
approve the revised pay-scale to the Petitioner and
provide appropriate fund to Respondent-Ranchi
University for payment of arrear of salary to the
Petitioner in the revised pay-scale including
payment of post retiral benefit to the Petitioner as
per revised U.G.C. pay-scale.”
7. Against the aforesaid order dated 09.02.2021 the present
appeal has been preferred by the Appellant University.
Argument of the learned counsel for the appellant-
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University:
8. The learned counsel for the appellant has assailed the
order dated 09.02.2021 which is the subject matter of the
present appeal on the basis of the following grounds: –
(i) The appointment of the writ petitioner, respondent is
not in consonance with the statute as contained in letter
no.BSU-25/85-283-GS(1)dated 29.01.1986, particularly, the
condition stipulated as under condition no.(1)(d), wherein, it
has been stipulated that “the appointment had been made on
the basis of advertisement of the post in the Indian Nation,
Searchlight, Aryavarta, Pradeep or in any other daily newspaper
of Bihar State or in a leading newspaper of India and from the
panel recommended by a Selection Committee constituted by
the University/College for the purposes, assisted by an expert
or experts”.
(ii) Further, from Annexure -3, i.e., appointment letter of
the writ petitioner/respondent, it is evident that she has been
interviewed by selection Borad of Sindri College on 06.04.1980,
prior to the date of advertisement which was duly advertised in
the “Indian Nation” newspaper dated 02.08.1980 and
subsequently, appointment for a period not exceeding six
months has been offered to her.
(iii) It has been contended that the selection of the
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respondent since has been made on 06.04.1980 and it has
been sworn by her that the appointment is based upon the
advertisement dated 02.08.1980, hence, selection/interview
since has been admitted to be made on 06.04.1980 which will
be not on the basis of the advertisement which itself has been
admitted to be notified on 02.08.1980.
The ground, therefore, has been raised that the
requirement of floating of advertisement is under the statute
dated 29.01.1986 as contained in condition no.(1)(d) thereof
and considering the admitted case of the appellant of the date
of selection, i.e., on 06.04.1980, hence, the said selection will
be in absence of advertisement and as such, contrary to the
statute dated 29.01.1986 and hence, the appointment so made
dehors the rule, i.e., the statute dated 29.01.1986.
It has been submitted that the aforesaid aspect of the
matter has not been brought on record due to the reason that
no counter affidavit was filed before the learned writ court.
(iv) The ground has also been taken that the appointment
since dehors the rule and as such, service of the respondent is
not fit to be regularized.
(v) It has been submitted that upto the 4th Pay Revision
Commission recommendation, the benefit of revision was given
from the date and when the 5th Pay Revision Commission
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report was implemented, the condition has been made
mandatory that the benefit of revision is only to be given to
those whose appointment is in consonance with the statute and
as such, the benefit of revision of the pay scale has not been
released in favour of the petitioner after implementation of 5 th
Pay Revision Commission.
(vi) The ground has also been taken that it is a case of
manipulation in the record which would be evident from the
communication dated 17.04.2012 showing the date of
appointment on 10.08.1980 making the appointment to be
presented after the date of advertisement, while the respondent
was interviewed prior to issuance of advertisement, i.e., on
06.04.1980.
Learned counsel has submitted that the learned Single
Judge has not taken into consideration these aspects of the
matter since no counter affidavit was filed before the learned
writ Court.
(vii) The further ground has been taken that the learned
Single Judge has considered the applicability of the judgment
passed by the Hon’ble Apex Court in the case of State of Bihar
& Ors. Vrs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors.,
reported in (2005) 9 SCC 129, while the said case is on the
issue of absorption of the teaching and non-teaching staff in
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consonance of the decision of the State of Bihar of taking over
the Colleges. Herein, it is the case of appointment on the basis
of statute dated 29.01.1986 which was not the subject matter
of the judgment rendered by the Hon’ble Apex Court in the case
of State of Bihar & Ors. Vrs. Bihar Rajya M.S.E.S.K.K.
Mahasangh & Ors., (supra).
(viii) Otherwise also, the grievance has been raised
belatedly although the cause of action accrued the day when
the 5th Pay Revision Committee was adopted but the writ
petition has been filed in the year, 2013 and as such, on that
ground also, the case of the writ petitioner/respondent is not fit
to be entertained.
9. Learned counsel, based upon the aforesaid grounds, has
submitted that the impugned judgment passed by the learned
Single Judge therefore, suffers from an error and as such, not
sustainable in the eye of law.
Argument of the learned counsel for the Pvt. Respondent
10. Per contra, Mr. Indrajit Sinha, learned counsel for the writ
petitioner-respondent has conceded that the judgment passed
by the Hon’ble Apex Court in the case of State of Bihar & Ors.
Vrs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors., (supra)
in the facts and circumstances of the present case is not
applicable.
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11. It has also been conceded that the appointment during the
relevant time when the respondent has claimed to be
appointed, was to be made on the basis of statute dated
29.01.1986.
12. Learned counsel has further admitted that the date of
advertisement is dated 02.08.1980, while, the interview is dated
06.04.1980. Such concession is based upon the admitted fact
as available on record.
13. Learned counsel, therefore, has submitted that the
respondent-writ petitioner admittedly has been tried to
continue in service for last 37 years and as such, taking into
consideration the long service length, the benefit which has
been sought for by filing the writ petition is fit to be allowed
without considering the issue of illegality.
Argument of the learned counsel for the respondent-State
14. Mr. Manish Mishra, learned GP-V appearing for the
respondent-State has accepted the argument advanced on
behalf of the University.
15. He, in addition thereto, has submitted that formal
decision is to be taken by the University. However, the formal
decision was taken by the Chancellor but the State has not
found the said decision to be passed based upon the record and
as such, the same has not been approved.
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Analysis
16. We have heard the learned counsel for the parties and
gone through the pleading made in the writ petition as also the
finding recorded by the learned Single Judge in the impugned
order along with the affidavits filed on behalf of respective
parties.
17. It needs to refer herein that earlier the present Letters
Patent Appeal has been dismissed by the Coordinate Bench of
this Court vide order dated 10.08.2023 on the ground of
limitation as the appeal is barred by delay of 297 days.
18. Being aggrieved with the said order, the appellant-
University has travelled to the Hon’ble Apex Court by filing Civil
Appeal being C.A.No(S).012996/2024 @ SLP(C)
No.22398/2023. The Hon’ble Apex Court vide order dated
22.11.2024 has allowed the appeal, by setting aside the order
dated 10.08.2023 passed by the High Court and has remitted
the matter back to the High Court. For ready reference, the
relevant part of the order dated 22.11.2024 is being quoted
hereinbelow: –
“1. Leave granted.
2. This appeal challenges the order dated
8/10.08.2023 vide which the appeal of the present
appellant was dismissed on the ground of delay.
3. Heard Shri Ajit Kumar Sinha, learned senior counsel
on behalf of the appellant and Ms. Anusuya Sadhu
Sinha, learned counsel for the respondent(s).
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4. We find that after the order was passed by the
learned Single Judge, the review application was filed
on 03.12.2022. Though, in the said review there was
delay the same was condoned and the petition was
heard on merits. Ultimately, the review application was
dismissed on merits on 20.01.2023 and the LPA was
filed on 25.03.2023. It cannot be therefore said that
there was inordinate delay in filing the appeal.
5. We, therefore, set aside the impugned order and
remit the matter back to the High Court. Delay in filing
the appeal before the High Court is condoned and the
appeal be heard by the High Court on merits.
6. The appeal is accordingly allowed.
7. Pending application(s), if any, shall stand disposed
of.”
19. Thereafter, the matter was placed before Hon’ble the Chief
Justice and accordingly, the instant appeal was assigned to this
Court (D.B.-II) to hear the matter afresh in the light of order
dated 22.11.2024 passed by the Hon’ble Supreme Court in Civil
Appeal being C.A.No(S).012996/2024 @ SLP(C)
No.22398/2023.
20. This Court, before proceeding to examine the illegality and
propriety of the impugned judgment, needs to refer herein the
certain admitted facts, i.e., date of advertisement is 02.08.1980,
and based upon that appointment is made on 10.08.1980 but
date of selection of the respondent/writ petitioner is
06.04.1980.
21. The benefit upto to the recommendation of the 4th Pay
Revision Committee was disbursed in favour of the respondent
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but the benefit of revision on or after 5 th Pay Revision
Committee had not been released that led the respondent to
approach the writ court by filing writ petition being W.P.(S)
No.4188 of 2013.
22. The direction has been passed by the learned Single Judge
on the premise that the State has made request for constitution
of Screening Committee and the same intention of the
University had been construed to be the decision of the
University on regularization of respondent and under the
aforesaid premise, the direction was passed upon the University
to pass formal order of regularization and in consequence
thereof, the release of benefit of revision of pay-scale on or after
recommendation of 5th Pay Revision Committee, the same is the
subject matter of the present appeal.
23. This Court, in view of the admitted facts and on
consideration of the rival submission made on behalf of the
parties is referring herein that whatever ground has been taken
by the University showing the appointment of the respondent to
be illegal being contrary to the statute dated 29.01.1986 which
has been admitted by the respondent at Bar as referred
hereinabove while referring the argument advanced on behalf of
the respondent concerned, the writ petitioner.
24. Therefore, the date of advertisement dated 02.08.1980, the
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date of selection/interviewed dated 06.04.1980 have been
admitted one and in view of the aforesaid admission, the date of
selection of the respondent is admittedly prior to the date of
issuance of advertisement. However, the respondent had tried
to present her case showing her to be appointed on 11.08.1980
in consonance with the advertisement dated 02.08.1980.
25. The same has also been admitted based upon the letter of
appointment by the learned counsel for the writ petitioner,
respondent.
26. Although, the learned Single Judge has gone into the
wrong premise without taking into consideration the
implication of resolution dated 29.01.1986 as per condition
no.(1)(d) of the statute as referred hereinabove.
27. Further, herein the applicability of the judgment rendered
by the Hon’ble Apex Court in the case of Bihar Rajya
M.S.E.S.K.K. Mahasangh & Ors (supra), has been admitted
to be not applicable and further, the date of selection was prior
to the date of advertisement.
28. This Court, in the light of the aforesaid admission is of the
view that the judgment which has been passed by the learned
Single Judge, cannot be said to be passed on proper
consideration of the factual aspect.
29. Learned counsel for the writ petitioner/respondent in the
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aforesaid admitted fact however, has argued that the
respondent/writ petitioner since has been allowed to continue
in service for the last 37 years and as such, the benefit which
has been sought for in the prayer which has been allowed by
the learned single judge may not be interfered with.
30. However, argument has been advanced on behalf of the
University, the appellant herein, that even the said relief cannot
be granted for two fold reasons: –
(i) That was not the case made out before the learned
writ court and in the Letters Patent Appellate Court,
new case is being made out which is not permissible.
(ii) The appointment once has been admitted to be illegal
being in the teeth of statute dated 29.01.1986, then,
the illegality which has been committed as on the
date of appointment, cannot be legalized and it is not
merely a question of appointment in absence of
advertisement, rather, the question of issuance of
advertisement has been made based on appointment
in view of condition no.(i) of statute dated 29.01.1986
which admittedly has not been followed, since, the
respondent has been appointed prior to issuance of
advertisement, the appointment of the respondent
cannot be considered to be irregular appointment,
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rather, it is illegal.
31. We have appreciated the aforesaid argument.
32. This Court, in order to consider the same first needs to
refer herein the difference between illegal appointment and
irregular appointment.
33. The Hon’ble Apex Court in the case of Municipal Corpn.,
Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373 while
referring the ratio as laid down by the constitution Bench of the
Hon’ble Apex Court in the case of State of Karnataka & Ors.
v. Umadevi & Ors. (3), (2006) 4 SCC 1 has distinguished
between the Illegal and Irregular appointments and has
observed as under:
“10. By way of clarification, however, in para 53 of its
judgment [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] this Court
clarified: (SCC p. 42)
53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. Narayanappa [State of Mysore v. S.V.
Narayanappa, AIR 1967 SC 1071 : (1967) 1 SCR 128] , R.N.
Nanjundappa [R.N. Nanjundappa v. T. Thimmiah, (1972) 1
SCC 409] and B.N. Nagarajan [B.N. Nagarajan v. State of
Karnataka, (1979) 4 SCC 507 : 1980 SCC (L&S) 4] and
referred to in para 15 above, of duly qualified persons in duly
sanctioned vacant posts might have been made and the
employees have continued to work for ten years or more but
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without the intervention of orders of the courts or of tribunals.
The question of regularisation of the services of such
employees may have to be considered on merits in the light of
the principles settled by this Court in the cases above referred
to and in the light of this judgment. In that context, the Union
of India, the State Governments and their instrumentalities
should take steps to regularise as a one-time measure, the
services of such irregularly appointed, who have worked for
ten years or more in duly sanctioned posts but not under
cover of orders of the courts or of tribunals and should further
ensure that regular recruitments are undertaken to fill those
vacant sanctioned posts that require to be filled up, in cases
where temporary employees or daily wagers are being now
employed. The process must be set in motion within six
months from this date. We also clarify that regularisation, if
any already made, but not sub judice, need not be reopened
based on this judgment, but there should be no further
bypassing of the constitutional requirement and regularising
or making permanent, those not duly appointed as per the
constitutional scheme.”
11. The question which, thus, arises for consideration, would
be: Is there any distinction between “irregular appointment”
and “illegal appointment”? The distinction between the two
terms is apparent. In the event the appointment is made in
total disregard of the constitutional scheme as also the
recruitment rules framed by the employer, which is State
within the meaning of Article 12 of the Constitution of India,
the recruitment would be an illegal one; whereas there may
be cases where, although, substantial compliance with the18 LPA No.140/2023
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constitutional scheme as also the rules has been made, the
appointment may be irregular in the sense that some
provisions of the rules might not have been strictly adhered
to.”
34. In the aforesaid case the Hon’ble Apex Court has further
observed that if the appointment itself is in infraction of the
rules or if it is in violation of the provisions of the Constitution
illegality cannot be regularised. Ratification or regularisation 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. Regularisation cannot be said to be a mode of
recruitment. For ready reference, the relevant paragraph is
being quoted as under:
“12. In R.N. Nanjundappa v. T. Thimmiah [R.N.
Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409] this Court
held: (SCC pp. 416-17, para 26)
“26. The contention on behalf of the State that a rule under
Article 309 for regularisation of the appointment of a
person would be a form of recruitment read with reference
to power under Article 162 is unsound and unacceptable.
The executive has the power to appoint. That power may
have its source in Article 162. In the present case the rule
which regularised the appointment of the respondent with
effect from 15-2-1958, notwithstanding any rules cannot
be said to be in exercise of power under Article 162. First,
Article 162 does not speak of rules whereas Article 309
speaks of rules. Therefore, the present case touches the
power of the State to make rules under Article 309 of the
nature impeached here. Secondly, when the Government19 LPA No.140/2023
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acted under Article 309 the Government cannot be said to
have acted also under Article 162 in the same breath. The
two articles operate in different areas. Regularisation
cannot be said to be a form of appointment. Counsel on
behalf of the respondent contended that regularisation
would mean conferring the quality of permanence on the
appointment whereas counsel on behalf of the State
contended that regularisation did not mean permanence
but that it was a case of regularisation of the rules under
Article 309. Both the contentions are fallacious. If the
appointment itself is in infraction of the rules or if it is in
violation of the provisions of the Constitution illegality
cannot be regularised. Ratification or regularisation 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. Regularisation 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.”
(emphasis supplied)
13. Yet again, in B.N. Nagarajan v. State of
Karnataka [B.N. Nagarajan v. State of Karnataka, (1979) 4
SCC 507 : 1980 SCC (L&S) 4] this Court followed the said
dicta stating: (SCC pp. 514-15, para 25)
“25. Apart from repelling the contention that regularisation
connotes permanence, these observations furnish the
second reason for rejection of the argument advanced on
behalf of the promotees and that reason is that when rules
framed under Article 309 of the Constitution of India are in
force, no regularisation is permissible in exercise of the
executive powers of the Government under Article 162
thereof in contravention of the rules. The regularisation
order was made long after the Probation Rules, the
Seniority Rules and the Recruitment Rules were
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promulgated and could not therefore direct something
which would do violence to any of the provisions thereof.
Regularisation in the present case, if it meant permanence
operative from 1-11-1956, would have the effect of giving
seniority to promotees over the direct recruits who, in the
absence of such regularisation, would rank senior to the
former because of the Seniority Rules read with the
Probation Rules and may in consequence also confer on
the promotees a right of priority in the matter of sharing
the quota under the Recruitment Rules. In other words, the
regularisation order, in colouring the appointments of
promotees as Assistant Engineers with permanence would
run counter to the rules framed under Article 309 of the
Constitution of India. What could not be done under the
three sets of Rules as they stood, would thus be achieved
by an executive fiat. And such a course is not permissible
because an act done in the exercise of the executive power
of the Government, as already stated, cannot override
rules framed under Article 309 of the Constitution.”
35. It needs to refer herein that the Constitution Bench of the
Hon’ble Apex Court in the case of State of Karnataka vs.
Umadevi (3) (supra) has been held that irregularity which is
curable will come under the fold of irregular appointment,
while, irregular which is not curable will come under the fold of
illegal appointment.
36. The aforesaid proposition is to be taken into consideration
on the basis of availability of the facts of the present case.
37. It is the admitted fact that the appointment of the
respondent has been said to be made on the basis of the statute
dated 29.01.1986, wherein, the specific condition has been put
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that such appointment can only be made on the basis of
advertisement to be floated in different newspaper.
38. The statute dated 29.01.1986 is binding and if insertion
has been made in the said statute that appointment is to be
made on the basis of advertisement then issuance of
advertisement is the mandatory condition in terms of statutory
command and if it has not been followed, then it cannot be
simply be said that if the appointment has been made without
issuance of advertisement, the same will come under the
irregular appointment, rather, the appointment if made in
absence of advertisement, then, it will be said to be in the teeth
of provision as contained in the condition no.(1)(d) of the
statute, for ready reference, the condition no.(1)(d) of statute
dated 29.01.1986 is being quoted as under:-
“(d) that, the appointment had been made on the
basis of advertisement of the post in the Indian
Nation, Searchlight, Aryavarta, Pradeep or in
any other daily newspaper of Bihar State or in a
leading newspaper of India and from the panel
recommended by a Selection Committee
constituted by the University/College for the
purposes, assisted by an expert or experts.”
39. The appointment admittedly has been made not in terms
of advertisement as has been admitted on behalf of the
respondent which is in teeth of condition no.(1)(d) of the statute
dated 29.01.1986, hence, this Court taking aid from the ratio
laid down by the Hon’ble Apex Court in the case of State of
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Karnataka vs. Uma Devi (supra) is of the view that the
appointment so made cannot be said to be regularized, rather,
it is illegal.
40. The another, aspect which is available on record that the
selection/interview of respondent has been made on
06.04.1980 but in order to show here the appointment said to
be in pursuant to the advertisement which was floated on
02.08.1980, the selection of the respondent presented to be
made on 10.08.1980 in pursuance of the advertisement dated
02.08.1980.
41. But, from the record it transpires that the Selection Board
of Sindri College has convened its meeting on 06.04.1980, i.e.,
prior to the date of advertisement as would be evident from the
annexure-3 dated 10.08.1980, which is being referred as
under:-
“ANNEXURE-3
सिन्दरी महासिद्यालय,
सिन्दरीपत्रIक SC/Appt./184(E)/80
सिन्दरी (धनबाद)
सदनाक 10.8.1980
To Smt. Gouri GhoshKD, 86, Sindri
Sub: Appointment as Lecturer in English
Dear Madam,
With reference to your application and the subsequent interview
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held by the Selection Board of Sindri College, Sindri, on 6.4.80 and their
recommendation thereon, it has been decided to offer you a post of Lecturer
in English on a Salary of Rs 700/- other allowances as admissible to you
This offer of appointment is subject to the acceptance of the terms and
conditions as laid down herewith
1. This appointment is for a period not exceeding six months at a stretch.
This period may however be extended by Governing Body for a further
period of six months or sum satisfactory performance of your work.
2. During this period of your service with us, your service may be
terminated try giving 24 (Twenty four) hours notice even without assigning
any reason.
3. You may not be paid your salary for longer vacation/ holidays vit, Durga
Puja/ Summer Vacation etc.
4. During your services with us, you shall obey the instructions
(administrative, academic and extracurricular activities issued to you by the
Principal of the College from time to time
5. You shall be required to show the anginal certificates and submit the
attested copies of such certificates at the time of joining the post.
6. In case you are employed under Central Govt/State Govt or any other
organisations, you will be required to submit at the time of joining you post
here a release certificate from your employee.
7. You will be eligible to join the provident fund scheme after your services
have been approved & confirmed by us
8. Your services will be terminated if your work is found not satisfactory
during this period.
Yours faithfully
for and on behalf
of Sindri College
s/d 10.08.80
(DK Sharma)
Secretary
I accept the above terms and Conditions.
Signature in full with date.
Copy to:
1. Principal, Sindri College.
2. Professor, Sindri College.”
42. It also needs to refer herein the communication dated
17.04.2012(Annexure 32 series) issued under the signature of
the respondent addressed to OSD (J) Governor’s Secretariat,
Raj Bhawan, Jharkhand is also being referred as under:-
To,
The O.S.D.(J)
Governor’s Secretariat,
Raj Bhawan, Ranchi.
Subject: Reminder of the regularization of the service of teachers
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under the statutes.
Sir,
With due respect I say that my service in Ranchi University has not
been regularized till date in spite of repeated requests and reminders.
1. I was appointed as lecturer on 10.08.1980 in Sindri College, by the
Governing Body. The post was duly advertised in the Indian Nation dated
2.8.1980,
2. That my appointment was made against a sanctioned post in the
prescribed UGC pay scale
3. That I was transferred from Sindri College, Sindri to Marwari College,
Ranchi on 6th July 1985.
4. That I applied for regularization of my services in the University under the
provision of the statutes approved by the Chancellor vide letter No.
BSU/25/85-283-GS(1) in 1995, 1998, 2005, 2010, 2014-etc
5. I did my Ph.D. from Ranchi University in March 1999 (Notification No.
Ex/1037-47, letter attached).
6 I did two Refresher Course (1994, 1998) letter attached.
7 I did one Orientation Programme 2002 (letter attached).
8. 1 served as a hostel Superintendent of P.G. Girls’ Hostel from 2nd Jan
1991 to 1995 and again from Jan 2011 till dateI would like to mention that I fullfill all criteria mentioned for regularization
of services of purely temporary teachers appointed on or before 28th
February, 1982I have completed 32 years of my service in this university. I have put
several reminders and hope you will be kind enough to consider my case
this time.
It is a trauma to work under this condition. Kindly suggest me whether this
simple thing needs a legal procedure or I will get the justice.
Thanking you.
Yours faithfully
Dr.Gouri Jilani
Deptt of English
Marwari College, Ranchi”
43. Therefore, this Court is of the view that it is a case of
doing misrepresentation by the respondent which would be
evident from the communication dated 17.04.2012 showing the
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date of appointment on 10.08.1980 making the appointment to
be presented after the date of advertisement, while the
respondent was interviewed prior to issuance of advertisement,
i.e., on 06.04.1980.
44. It needs to refer herein that misrepresentation/fraud
vitiates the solemnity of the act. It is settled proposition of law
that fraud is anathema to all equitable principles and any affair
tainted with fraud cannot be perpetuated or saved by the
application of any equitable doctrine. Further, an act of
deliberate deception with a design to secure something, which
is otherwise not due, tantamount to fraud, reference in this
regard may be made to the judgment rendered by the Hon’ble
Apex Court in the case of Regional Manager, Central Bank of
India Vrs. Madhulika Guruprasad Dahir & Ors., reported in
(2008) 13 SCC 170, wherein, it has been held as under:-
“15. An act of deliberate deception with a design to
secure something, which is otherwise not due,
tantamounts to fraud. Fraud is a conduct either by letter
or words, which induces the other person or authority to
take a definite determinative stand as a response to the
conduct of the former either by words or letter. (See R.
Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC 105
: 2004 SCC (L&S) 350] , Bank of India [(2005) 7 SCC
690 : 2005 SCC (L&S) 1011] , BHEL [(2007) 5 SCC 336 :
(2007) 2 SCC (L&S) 152] , Derry v. Peek [(1889) 14 AC
337 : (1886-90) All ER Rep 1 (HL)] , Ram Preeti
Yadav v. U.P. Board of High School and Intermediate
Education [(2003) 8 SCC 311] and Bhaurao Dagdu26 LPA No.140/2023
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Paralkar v. State of Maharashtra [(2005) 7 SCC 605].)
16. In Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC
319] this Court had observed that fraud is anathema to
all equitable principles and any affair tainted with fraud
cannot be perpetuated or saved by the application of
any equitable doctrine.”
45. Now this Court, is to consider as to whether merely
because writ petitioner has rendered 37 years of service on the
false premise of manipulation as also the appointment was in
the teeth of statute dated 29.01.1986, can the service of the
respondent be regularized as has been directed to be done by
the learned Single Judge.
46. Since, the argument has been advanced on behalf of the
respondent to consider the case in the light of long length of
service and as such, the said aspect of the matter is being
considered.
47. It needs to refer herein that the constitution Bench of the
Hon’ble Apex Court in the case of State of Karnataka v.
Umadevi (supra) has observed that the High Courts acting
under Article 226 of the Constitution, should not ordinarily
issue directions for absorption, regularisation, or permanent
continuance unless the recruitment itself was made regularly
and in terms of the constitutional scheme.
48. The Hon’ble Apex Court in the case of Secretary to
Government School Education Deptt., Chennai v. R.
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Govindaswamy, (2014) 4 SCC 769 while referring the ratio
rendered by the Hon’ble Apex Court in the case of State of
Rajasthan & Ors. v. Daya Lal & Ors., (2011) 2 SCC 429 has
categorically held that the High Courts, in exercising power
under Article 226 of the Constitution will not issue directions
for regularisation, absorption or permanent continuance,
unless the employees claiming regularisation had been
appointed in pursuance of a regular recruitment in accordance
with relevant rules, for ready reference the relevant paragraph
is being quoted as under:
“8. This Court in State of Rajasthan v. Daya Lal [State of
Rajasthan v. Daya Lal, (2011) 2 SCC 429 : (2011) 1 SCC
(L&S) 340 : AIR 2011 SC 1193] has considered the
scope of regularisation of irregular or part-time
appointments in all possible eventualities and laid down
well-settled principles relating to regularisation and
parity in pay relevant in the context of the issues
involved therein. The same are as under : (SCC p. 435,
para 12)
“(i) The High Courts, in exercising power under Article
226 of the Constitution will not issue directions for
regularisation, absorption or permanent continuance,
unless the employees claiming regularisation had been
appointed in pursuance of a regular recruitment in
accordance with relevant rules in an open competitive
process, against sanctioned vacant posts. The equality
clause contained in Articles 14 and 16 should be
scrupulously followed and Courts should not issue a
direction for regularisation of services of an employee
which would be violative of the constitutional scheme.
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While something that is irregular for want of compliance
with one of the elements in the process of selection
which does not go to the root of the process, can be
regularised, back door entries, appointments contrary to
the constitutional scheme and/or appointment of
ineligible candidates cannot be regularised.”
49. But, the aforesaid proposition is also not fit to be
considered by passing a positive direction in favour of the
respondent due to the following reasons: –
(i) This Court is exercising the power conferred under
Clause-10 of Letters Patent, however, exercise the
jurisdiction conferred under Article 226 of the
Constitution of India.
(ii) The Letters Patent Appellate Court is furtherance of
the proceeding of the writ court but even accepting
the Letters Patent Appellate Court to be furtherance
of the proceeding of the writ court, then also, the
parties cannot be allowed to make out a new case
before a higher forum by way of Letters Patent
Appellate Court.
(iii) The fact about making of new case is admitted one
on the basis of submission made on behalf of the
respondent/writ petitioner.
50. Further, we are conscious that even the relief can be
moulded and moulding of relief is also said to be available in the
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pleading to that effect so that party may have an opportunity to
rebut. Similarly, the Hon’ble Apex Court in the case of State of
Rajasthan Vrs. Hindustan Sugar Mills Ltd. & Ors., reported in
AIR 1988 SC 1621, wherein, it has been laid down at paragraph-
4 which reads as under:
“4. … …The High Court was exercising high
prerogative jurisdiction under Article 226 and could
have moulded the relief in a just and fair manner as
required by the demands of the situation. … …”
51. Further, the law is equally settled that the High Court
while exercising power under Article 226 of the Constitution of
India is to strictly go by the pleading and there cannot be any
deviation by moulding the prayer by giving finding as has been
held by Hon’ble Apex Court in the case of State of Madhya
Pradesh and Another vs. Kedia Great Galeon Limited and
Another, reported in (2017) 13 SCC 836, wherein at paragraph
38, it has been held as under:-
“38. … … … We are, thus, of the considered opinion that
the something which the writ petitioner never intended
or prayed for cannot be looked into in this appeal.”
52. This Court, in view of the settled position of law is not in
agreement with such submission made on behalf of the
respondent to grant relief on the basis of new ground having been
taken in the Letters Patent Appellate Court.
53. Here, it has been insisted by the learned counsel for the
respondent/writ petitioner to pass absolutely a new direction on
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the ground of 37 years of service said to be rendered by the
respondent, which according to the considered view of this Court,
is not permissible.
54. The other reason for not granting such relief is that the
moment appointment dehors the statute dated 29.01.1986 being
not in consonance with the condition of statute no.(1)(d) of the
statute dated 29.01.1986, then, the regularizing the service of the
writ petitioner, respondent will amount to legalizing the illegality
committed in order to perpetuate it which is contrary to the
settled position of law that illegality cannot be allowed to
perpetuated, reference in this regard may be made to the relevant
paragraph of the judgment rendered by the Hon’ble Apex Court in
the case of State of U.P. & Ors. vs. Rekha Rani, (2011) 11 SCC
441, which reads as under:
“12. It has been held in a recent decision of this Court
in State of Rajasthan v. Daya Lal [(2011) 2 SCC 429 :
(2011) 1 SCC (L&S) 340] following the Constitution
Bench decision of this Court in State of
Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC
(L&S) 753] that the High Court in exercise of its power
under Article 226 cannot regularise an employee. Merely
because some others had been regularised does not give
any right to the respondent. An illegality cannot be
perpetuated.”
55. The Hon’ble Apex Court in the case of Union of India &
Ors. vs. Arulmozhi Iniarasu & Ors., (2011) 7 SCC 397 has
observed that only because an illegality has been committed, the
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same cannot be directed to be perpetuated. It is trite law that
there cannot be equality in illegality. The relevant paragraph is
being quoted as under:
“26. Lastly, as regards the submission that the action of
the appellants is highly discriminatory inasmuch as some
similarly situated persons have been appointed/absorbed
as Sepoys, the argument is stated to be rejected. It is well
settled that a writ of mandamus can be issued by the High
Court only when there exists a legal right in the writ
petitioner and corresponding legal obligation on the State.
Only because an illegality has been committed, the same
cannot be directed to be perpetuated. It is trite law that
there cannot be equality in illegality. (Ref. Sushanta
Tagore v. Union of India [(2005) 3 SCC 16] , U.P. State
Sugar Corpn. Ltd. v. Sant Raj Singh [(2006) 9 SCC 82 :
2006 SCC (L&S) 1610], State v. Sashi
Balasubramanian [(2006) 13 SCC 252 : (2007) 3 SCC (Cri)
337] and State of Orissa v. Prasana Kumar Sahoo [(2007)
15 SCC 129 : (2010) 2 SCC (L&S) 765.”
56. Further, it is settled position of law that
regularisation as is well known is not a mode of recruitment.
A policy decision to absorb a person who has been appointed
without following the recruitment rules, would not confer any
legal right on him. A Constitution Bench of the Hon’ble Apex
Court in State of Karnataka v. Umadevi (3) categorically held
that any appointment made in violation of the constitutional
provisions would be a nullity.
57. The Hon’ble Apex Court in the case of State of
Orissa & Ors. vs. Prasana Kumar Sahoo, (2007) 15 SCC
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129 has observed that it may be that some other persons
similarly situated have been appointed. But Article 14 as is
well known contains a positive concept. A writ of mandamus
can be issued by the High Court only when there exists a
legal right in the writ petitioner and corresponding legal
obligation in the State. Only because an illegality has been
committed, the same cannot be directed to be perpetuated by
a court of law. Relevant paragraph of the aforesaid judgment
is being quoted as under:
“20. It may be that some other persons similarly situated
have been appointed. But Article 14 as is well known
contains a positive concept. A writ of mandamus can be
issued by the High Court only when there exists a legal
right in the writ petitioner and corresponding legal
obligation in the State. Only because an illegality has
been committed, the same cannot be directed to be
perpetuated by a court of law.
21. It is also well settled that there cannot be equality in
illegality. See Sushanta Tagore v. Union of India [(2005) 3
SCC 16] , State v. Sashi Balasubramanian [(2006) 13
SCC 252 : (2007) 3 SCC (Cri) 337 : (2006) 10 Scale 541]
and U.P. State Sugar Corpn. Ltd. v. Sant Raj
Singh [(2006) 9 SCC 82 : 2006 SCC (L&S) 1610 : (2006) 6
Scale 205].”
58. It is also settled position of law that illegality if
committed on inception, cannot be regularized due to
subsequent development even on expiry of the time, reference
in this regard may be made to the judgment rendered by the
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Hon’ble Apex Court in the case of State of Orissa & Ors. vs.
Mamata Mohanty, (2011) 3 SCC 436. For ready reference,
the relevant paragraph is being quoted, as under:
“37. It is a settled legal proposition that if an order is
bad in its inception, it does not get sanctified at a
later stage. A subsequent action/development cannot
validate an action which was not lawful at its
inception, for the reason that the illegality strikes at
the root of the order. It would be beyond the competence
of any authority to validate such an order. It would be ironic
to permit a person to rely upon a law, in violation of which
he has obtained the benefits. If an order at the initial stage
is bad in law, then all further proceedings consequent
thereto will be non est and have to be necessarily set aside.
A right in law exists only and only when it has a lawful
origin. (Vide Upen Chandra Gogoi v. State of Assam [(1998)
3 SCC 381 : 1998 SCC (L&S) 872 : AIR 1998 SC 1289]
, Mangal Prasad Tamoli v. Narvadeshwar Mishra [(2005) 3
SCC 422 : AIR 2005 SC 1964] and Ritesh Tewari v. State of
U.P. [(2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315 : AIR 2010
SC 3823])”
59. It needs to refer herein that the Hon’ble Apex Court
in the case of Harminder Kaur v. Union of India, (2009) 13
SCC 90 has observed that long service by itself may not be a
ground for directing regularization. The relevant paragraph of
the aforesaid judgment is being quoted, as under:
“10. Rule 6 of the Rules empowers the
Administrator to make relaxation of the
applicability of the Rules only in the event if he is
of the opinion that it was necessary or expedient
so to do, wherefor not only an appropriate order
was required to be issued but also reasons were to
be recorded in writing therefor. Relaxation of the
Rules could be made only in respect of any class
or category of persons and not with regard to the
mode of recruitment. The offers of appointment
issued in favour of the appellants clearly go to
show that the Rules had been relaxed only for the
purpose mentioned therein. We, however, have not
been informed as to whether the requisite prior
permission from the Department had been34 LPA No.140/2023
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obtained by the Heads of the Schools upon
assigning detailed reasons/justification therefor
as stated in Para 1 of the order dated 27-11-1997.
Be that as it may, it is now well known that
long service by itself may not be a ground for
directing regularisation. Regularisation as is
well known is not a mode of appointment.”
60. Thus, from the aforesaid it is evident that long
service by itself may not be a ground for directing
regularization, as same is not a mode of appointment.
61. It needs to refer herein that, the grievance has been
raised by the appellant that writ petition was filed belatedly
as the cause of action accrued the day when the 5th Pay
Revision Committee was adopted but the writ petition has
been filed in the year, 2013 and as such, on that ground also,
the case of the writ petitioner, respondent is not fit to be
entertained.
62. In the aforesaid context, this Court has conscious
with the settled position of law that undue delay and laches
are relevant factors in exercising equitable jurisdiction under
Article 226 of the Constitution of India. Following the cases of
Government of West Bengal v. Tarun K. Roy &
Ors., (2004) 1 SCC 347 and U.P. Jal Nigam &
Ors. v. Jaswant Singh & Ors., (2006) 11 SCC 464, the
Hon’ble Apex Court in New Delhi Municipal Council v. Pan
Singh, (2007) 9 SCC 278, has observed that after a long
time the writ petition should not have been entertained even
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if the petitioners are similarly situated and discretionary
jurisdiction may not be exercised in favour of those who
approached the Court after a long time. It was held that delay
and laches were relevant factors for exercise of equitable
jurisdiction.
63. Similarly, in Lipton India Ltd. v. Union of India,
J.T. 1994 (6) SC 71 and M.R. Gupta v. Union of India &
Ors., (1995) 5 SCC 628 it was held by the Hon’ble Apex
Court that though there was no period of limitation provided
for filing a petition under Article 226 of Constitution of India,
ordinarily a writ petition should be filed within reasonable
time.
64. In K.V. Rajalakshmiah Setty & Ors. Vs. State of
Mysore & Anr., AIR 1967 SC 993, it was observed by the
Hon’ble Apex Court that representation would not be
adequate explanation to take care of delay. Same view was
reiterated in State of Orissa v. Pyari Mohan
Samantaray, AIR 1976 SC 2617 and State of
Orissa vs. Arun Kumar Patnaik (1976) 3 SCC 579 and the
said view has also been followed in the case of Shiv
Dass v. Union of India & Ors., AIR 2007 SC 1330
and New Delhi Municipal Council (supra).
65. In Northern Indian Glass Industries v. Jaswant
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Singh & Ors., (2003) 1 SCC 335 the Hon’ble Supreme Court
held that the High Court cannot ignore the delay and laches
in approaching the writ Court and there must be satisfactory
explanation by the petitioner as how he could not come to the
Court well in time. A similar view has been reiterated by the
Hon’ble Supreme Court in Printers (Mysore) Ltd. vs. MA
Rasheed, (2004) 4 SCC 460, wherein it has been held that
the High Court should have dismissed the writ petition on the
ground of delay and laches.
66. The Hon’ble Apex Court in the case of A.P. SRTC vs.
N. Satyanarayana & Ors., (2008) 1 SCC 210 has observed
that since in the writ petition without any explanation having
been offered for the delayed approach, writ petition should
have been dismissed on the ground of delay and laches. For
ready reference the relevant paragraph is being quoted as
under:
“10. Even on a bare reading of para 18 of the judgment
on which reliance has been placed by the learned Single
Judge and the Division Bench, it is clear that the relief
was moulded to avoid anomalies and in view of the
peculiar situation involved. This Court categorically held
that the orders impugned in the appeals were not
sustainable because the writ petitions were filed after a
long lapse of time. Similar is the position here. The
regularisation was done w.e.f. 1-8-1987 and the writ
petitions were filed in the year 1999. That being so and
since in the writ petition without any explanation having37 LPA No.140/2023
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been offered for the delayed approach, writ petition
should have been dismissed on the ground of delay and
laches.”
67. Thus, from the aforesaid it may be inferred that
undue delay and laches are relevant factors in exercising
equitable jurisdiction under Article 226 of the Constitution of
India though there was no period of limitation provided for
filing a petition under Article 226 of Constitution of India,
ordinarily a writ petition should be filed within reasonable
time.
68. This Court, in view of the aforesaid, is of the view
that since admittedly, the appointment of the writ
petitioner/respondent was not in consonance with the statute
as contained in letter no.BSU-25/85-283-GS(1) dated
29.01.1986, rather, the petitioner by suppressing the factual
aspect has tried to make out a case in his favour as referred
above.
69. Hence, it is a case of material suppression and the
law is well settled that if misrepresentation amounts to fraud
and if there is element of fraud, then, the principle of equality
is not to be applied to such litigant.
70. As such, no such relief can be granted to the writ
petitioner, respondent even on the ground of long length of
service.
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2023:JHHC:44529-DB
2023:JHHC:44530-DB
71. Accordingly, and on the basis of discussion made
hereinabove, this court is of the view that the instant appeal
stands allowed.
72. In consequent thereof, the writ petition is, hereby,
dismissed.
73. Pending Interlocutory application(s), if any, stands
disposed of.
(Sujit Narayan Prasad, J.)
I agree
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Rohit/-A.F.R.
39 LPA No.140/2023