SANTOSH KUMARI RANA V. UNION OF INDIA

CWP/618/2014

AI Insights

The case involves multiple petitions filed by individuals employed in various capacities (e.g., Matron, Security Guards, etc.) against the Union of India and other respondents, challenging the termination of their contractual services and the decision to outsource these services. The petitioners argued that their services should not be dispensed with as they were performing satisfactorily. The respondents countered that the appointments were not made in accordance with legal requirements, specifically lacking proper advertisement and selection processes as mandated by Articles 14 and 16 of the Constitution. The court referenced several Supreme Court judgments to emphasize that appointments to public posts must be made through a transparent and fair process, ensuring equality of opportunity.

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 724069 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 01-12-2015
• Assessment Year: misc
• Other Referred Cases: State of Bihar versus Upendra Narayan Singh and others (2009) 5 SCC 65, State of Haryana v. Piara Singh (1992) 4 SCC 118, Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and others (1992) 4 SCC 99, State of U.P. and others v. U.P. State Law Officers Association and others (1994) 2 SCC 204, State of Orissa and another versus Mamata Mohanty (2011) 3 SCC 436, Renu and others versus District and Sessions Judge, Tis Hazari Courts, Delhi and another (2014) 14 SCC 50, Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216, Union Public Service Commission v. Girish Jayanti Lal Vaghela & Ors., AIR 2006 SC 1165, M.P. State Coop. Bank Ltd., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264, Secretary, State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, State of Himachal Pradesh & Anr. versus Ravinder Singh, reported in 2009 AIR SCW 452
• Laws Referred To: Articles 14 and 16 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASHOK SHARMA; NIPUN SHARMA; SANDEEP SHARMA; PANKAJ NEGI; VIJAY CHAUDHARY
• Assessee Lawyers: SANJEEV BHUSHAN; ABHILASHA KAUNDAL; VIJAY CHAUDHARY; RAMAKANT SHARMA
• Keywords: Backdoor entry; Illegal appointment; Contractual basis; Outsourcing services; Public employment; Equality of opportunity

Judgement Text

"IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.618 of 2014 alongwith CWP Nos. 3800 and 3943 of 2014. Judgment reserved on: 26.11.2015. Date of decision: December 1st ,2015, 1. CWP No.618 of 2014. Santosh Kumari Rana …..Petitioner. Versus Union of India and others …..Respondents. For the Petitioner : Mr.Sanjeev Bhushan, Senior Advocate with Ms.Abhilasha Kaundal, Advocate. For the Respondents : Mr.Ashok Sharma, Assistant Solicitor General of India with Mr.Nipun Sharma, Advocate, for respondent No.1. Mr.Sandeep Sharma, Senior Advocate with Mr.Pankaj Negi, Advocate, for respondents No.2 and 3. Mr.Vijay Chaudhary, Advocate, for respondent No.4. 2. CWP No.3800 of 2014. Seema Devi and others …..Petitioners. Versus Union of India and others …..Respondents. For the Petitioners : Mr.Vijay Chaudhary, Advocate. For the Respondents : Mr.Ashok Sharma, Assistant Solicitor General of India with Mr.Nipun Sharma, Advocate, for respondent No.1. Mr.Sandeep Sharma, Senior Advocate with Mr.Pankaj Negi, Advocate, for respondents No.2 and 3. 2 3. CWP No.3943 of 2014. Pawan Kumar and others …..Petitioners. Versus Union of India and others …..Respondents. For the Petitioners : Mr.Ramakant Sharma, Advocate. For the Respondents : Mr.Ashok Sharma, Assistant Solicitor General of India with Mr.Nipun Sharma, Advocate, for respondent No.1. Mr.Sandeep Sharma, Senior Advocate with Mr.Pankaj Negi, Advocate, for respondents No.2 and 3. Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes Tarlok Singh Chauhan, Judge. Since common question of facts and law arise for consideration in these petitions and were, therefore, taken up together for disposal. 2. The petitioners have been engaged by the respondents on contractual basis in different capacities like Matron, Security Guards, Malis, Safai Karamchari, Electrician, Chowkidar etc. In principle, their grievance is that their services should not be dispensed with and the respondents should be restrained from out sourcing the services against which they were appointed and are working to the entire satisfaction of the respondents. 3. The respondents have opposed the claim of the petitioners by filing reply wherein it has been specifically pointed out that the appointment of the petitioners was not in accordance with law and the Whether the reporters of the local papers may be allowed to see the Judgment?Yes 3 petitioners were merely appointed as casual workers on fixed wages as per requirement initially for three months and thereafter re-engaged after intermittent breaks. The earliest appointments have been made only in June, 2012 and the same does not in any manner vest any legal right in the petitioners. I have heard the learned counsel for the parties and have also gone through the records of the case. 4. There is no denial of the fact in the writ petitions that the mandate of Articles 14 and 16 of the Constitution of India by issuance of advertisements in newspaper and selection process as also observance of the reservation policy at the time of initial appointment of the petitioners was not followed. Mere allowing continuance in service or extending the period of appointment in itself cannot confer any right in teeth of Article 14 and the petitioners cannot claim any ground to perpetuate this illegality. This aspect of the matter has been considered in detail by the Hon’ble Supreme Court in State of Bihar versus Upendra Narayan Singh and others (2009) 5 SCC 65 wherein it was held :- “44. The scenario is worst when it comes to appointment to lower strata of the civil services. Those who have been bestowed with the power to make appointment on Class III and Class IV posts have by and large misused and abused the same by violating relevant rules and instructions and have indulged in favouritism and nepotism with impunity resulting in total negation of the equality clause enshrined in Article 16 of the Constitution. 45. Thousands of cases have been filed in the Courts by aggrieved persons with the complaints that appointment to Class III and Class IV posts have been made without issuing any advertisement or sending requisition to the employment 4 exchange as per the requirement of the 1959 Act and those who have links with the party in power or political leaders or who could pull strings in the power corridors get the cake of employment. Cases have also been filed with the complaints that recruitment to the higher strata of civil services made by the Public Service Commissions have been affected by the virus of spoil system in different dimensions and selections have been made for considerations other than merit. 46. Unfortunately, some orders passed by the Courts have also contributed to the spread of spoil system in this country. The judgments of 1980s and early 1990s show that this Court gave expanded meaning to the equality clause enshrined in Articles 14 and 16 and issued directions for treating temporary/ad hoc/daily wage employees at par with regular employees in the matter of payment of salaries etc. The schemes framed by the Governments and public bodies for regularization of illegally appointed temporary/ad hoc/daily wage/casual employees got approval of the Courts. In some cases, the Courts also directed the State and its instrumentalities/agencies to frame schemes for regularization of the services of such employees. 47. In State of Haryana v. Piara Singh (1992) 4 SCC 118, this Court reiterated that appointment to the public posts should ordinarily be made by regular recruitment through the prescribed agency and that even where ad hoc or temporary employment is necessitated on account of the exigencies of administration, the candidate should be drawn from the employment exchange and that if no candidate is available or sponsored by the employment exchange, some method consistent with the requirements of Article 14 of the Constitution should be followed by publishing notice in appropriate manner calling for applications and all those who apply in response thereto should be considered fairly, but proceeded to observe that if an ad hoc or temporary employee is continued for a fairly long spell, the authorities are duty bound to consider his case for regularization subject to his fulfilling the conditions of eligibility and the requirement of satisfactory service. 5 48. The propositions laid down in Piara Singh's case (supra) were followed by almost all High Courts for directing the concerned State Governments and public authorities to regularize the services of ad hoc/temporary/daily wage employees only on the ground that they have continued for a particular length of time. In some cases, the schemes framed for regularization of the services of the backdoor entrants were also approved. As a result of this, beneficiaries of spoil system and corruption garnered substantial share of Class III and Class IV posts and thereby caused irreparable damage to the service structure at the lower levels. Those appointed by backdoor methods or as a result of favoritism, nepotism or corruption do not show any commitment to their duty as public servant. Not only this, majority of them are found to be totally incompetent or inefficient. 49 . In Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and others (1992) 4 SCC 99, the Court took cognizance of the illegal employment market which has developed in the country and observed: (SCC pp. 111-12, para 23) \"23. Apart from the fact that the petitioners cannot be directed to be regularised for the reasons given above, we may take note of the pernicious consequences to which the direction for regularisation of workmen on the only ground that they have put in work for 240 or more days, has been leading. Although there is an Employment Exchange Act which requires recruitment on the basis of registration in the Employment Exchange, it has become a common practice to ignore the Employment Exchange and the persons registered in the Employment Exchanges, and to employ and get employed directly those who are either not registered with the Employment Exchange or who though registered are lower in the long waiting list in the Employment Register. The courts can take judicial notice of the fact that such employment is sought and given directly for various illegal considerations including money. The employment is given first for temporary periods with technical breaks to circumvent the relevant rules, and is continued for 240 or more days with a view to give the benefit of regularization knowing the judicial trend that those who have completed 240 or more days are directed to be automatically regularized. A good deal of illegal employment market has developed resulting in a new source of corruption and frustration of those who are waiting at the Employment Exchanges for years. Not all those who gain such backdoor entry in the employment 6 are in need of the particular jobs. Though already employed elsewhere, they join the jobs for better and secured prospects. That is why most of the cases which come to the courts are of employment in government departments, public undertakings or agencies. Ultimately it is the people who bear the heavy burden of the surplus labour. The other equally injurious effect of indiscriminate regularization has been that many of the agencies have stopped undertaking casual or temporary works though they are urgent and essential for fear that if those who are employed on such works are required to be continued for 240 or more days they have to be absorbed as regular employees although the works are time-bound and there is no need of the workmen beyond the completion of the works undertaken. The public interests are thus jeopardised on both counts.\" (emphasis added) 50. In State of U.P. and others v. U.P. State Law Officers Association and others (1994) 2 SCC 204, this Court examined the correctness of an order passed by Allahabad High Court quashing the termination of the services of 26 law officers and appointment of new law officers. After noticing the provisions of Legal Remembrancer's Manual which regulate appointment of Government counsel in the S tate of U.P. and the manner in which the respondents were appointed, this Court reversed the order of the High Court and observed: (SCC pp.217-18, para 19) \"19. It would be evident from Chapter V of the said Manual that to appoint the Chief Standing Counsel, the Standing Counsel and the Government Advocate, Additional Government Advocate, Deputy Government Advocate and Assistant Government Advocate, the State Government is under no obligation to consult even its Advocate-General much less the Chief Justice or any of the judges of the High Court or to take into consideration, the views of any committee that \"may\" be constituted for the purpose. The State Government has a discretion. It may or may not ascertain the views of any of them while making the said appointments. Even where it chooses to consult them, their views are not binding on it. The appointments may, therefore, be made on considerations other than merit and there exists no provision to prevent such appointments. The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on considerations other than merit. In the absence of guidelines, the appointments may be made purely on personal or political considerations, and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come 7 by the back door have to go by the same door. This is more so when the order of appointment itself stipulates that the appointment is terminable at any time without assigning any reason. Such appointments are made, accepted and understood by both sides to be purely professional engagements till they last. The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.\" [emphasis added] “58. In the Letters Patent Appeal filed by them, the appellants reiterated that the respondents had been appointed without following any procedure and without any selection. They also contended that even though vacant posts were not available, the then Regional Director, Gaya made large number of illegal appointments and this fact was established in the enquiry got conducted by the department. However, the Division Bench did not deal with the issues raised in the appeal and dismissed the same by making reference to the orders passed in LPA No.325 of 2000, Civil Review No.279 of 2000 and LPA No.47 of 2005 and observing that taking different view in the case of the respondents could lead to an anomalous position inasmuch as some persons would get back into service on the strength of the court's order while others will be thrown out. 59. At the hearing of this appeal, we asked the learned Senior Counsel appearing for the respondents to show that before appointing his clients on ad hoc basis, the then Regional Director, Gaya had issued an advertisement and/or sent requisition to the employment exchange and made selection after considering competing claims of the eligible candidates but he could not draw our attention to any document from which it could be inferred that the respondents were appointed after advertising the posts or by adopting some other method which could enable other eligible persons to at least apply for being considered for appointment. He, however, submitted that issue relating to legality of the initial appointments of the respondents has become purely academic and this Court need not go into 8 the same because their services had been regularised by the competent authority in 1992. 60. In our opinion, there is no merit in the submission of the learned senior counsel. If the initial appointments of the respondents are found to be illegal per se, the direction given by the High Court for their reinstatement with consequential benefits cannot be approved by relying upon the so-called regularization of their services. Had the respondents been appointed by the competent authority after issuing an advertisement or sending requisition to the employment exchange so as to enable the latter to sponsor the names of eligible persons then they would have certainly produced the relevant documents before the High Court or at least before this Court. However, the fact of the matter is that none of the documents which could give a semblance of legitimacy to the appointments of the respondents was produced before the High Court and none has been produced before this Court.” 5. In State of Orissa and another versus Mamata Mohanty (2011) 3 SCC 436, it was held by the Hon’ble Supreme Court that no person can be appointed even on a temporary or adhoc basis without inviting applications from all eligible candidates. Even if the appointments have been made by inviting names from the Employment Exchange or putting a notice on the notice board etc., that will not meet the requirement of Articles 14 and 16 of the Constitution of India. A person employed in violation of these provisions is, therefore, not entitled to any relief including salary. It is apt to reproduce paragraphs 35 and 36 of the judgment which read thus:- “Appointment/employment without advertisement 35. At one time this Court had been of the view that calling the names from Employment Exchange would curb to certain extent the menace of nepotism and corruption in public employment. But, later on, came to the conclusion that some appropriate method consistent with the requirements of Article 16 should be 9 followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. 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 the open market by advertising the vacancies in newspapers having wide circulation or by announcement in Radio and Television as merely calling the names from the Employment Exchange does not meet the requirement of the said Article of the Constitution. (Vide: Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors., AIR 1992 SC 2130; Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216; Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; Binod Kumar Gupta & Ors. v. Ram Ashray Mahoto & Ors., AIR 2005 SC 2103; National Fertilizers Ltd. & Ors. v. Somvir Singh, AIR 2006 SC 2319; Telecom District Manager & Ors. v. Keshab Deb, (2008) 8 SCC 402; State of Bihar v. Upendra Narayan Singh & Ors., (2009) 5 SCC 65; and State of Madhya Pradesh & Anr. v. Mohd. Ibrahim, (2009) 15 SCC 214). 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 Notice Board 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 of 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.” 10 6. In Renu and others versus District and Sessions Judge, Tis Hazari Courts, Delhi and another (2014) 14 SCC 50, it was held by the Hon’ble Supreme Court that the appointments of the employees including Class IV employees should be made on touchstone of equality of opportunity which is cornerstone of Constitution. It was held:- “4. In view of the aforesaid submissions, we do not think it necessary to peruse the record in order to gauge the amount of irregularities or illegalities. Our basic concern is that the appointments in judicial institutions must be made on the touchstone of equality of opportunity enshrined in Article 14 read with Article 16 of the Constitution of I ndia and under no circumstance any appointment which is illegal should be saved for the reason that the grievance of the people at large is that complete darkness in the light house has to be removed. The judiciary which raises a finger towards actions of every other wing of the society cannot afford to have this kind of accusations against itself. 6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution. 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 Administration, Delhi & Ors., AIR 1992 SC 789; State of Haryana & Ors. v. Piara Singh & Ors. etc.etc., AIR 1992 SC 2130; Prabhat Kumar Sharma & Ors. v. State of U.P. & Ors., AIR 1996 SC 2638; J.A.S. Inter College, Khurja, U.P. & Ors. v. State of U.P. & Ors., AIR 1996 SC 3420; M.P. Housing Board & Anr. v. Manoj Shrivastava, AIR 2006 SC 3499; M.P. State Agro Industries Development Corporation Ltd. & Anr. v. S.C. Pandey, (2006) 2 SCC 716; and State of Madhya Pradesh & Ors. v. Ku. Sandhya Tomar & Anr., JT 2013 (9) SC 139. 11 9. In Excise Superintendent Malkapatnam, Krishna District, A.P. v. K.B.N. Visweshwara Rao & Ors., (1996) 6 SCC 216, a larger Bench of this Court reconsidered its earlier judgment in Union of India & Ors. v. N. Hargopal & Ors., AIR 1987 SC 1227, wherein it had been held that insistence of requisition 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, 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 case of all candidates who have applied. If this procedure is adopted, fair play would be sub served. The equality of opportunity in the matter of employment would be available to all eligible candidates.” (Emphasis added) (See also: Arun Tewari & Ors. v. Zila Mansavi Shikshak Sangh & Ors., AIR 1998 SC 331; and Kishore K. Pati v. Distt. Inspector of Schools, Midnapur & Ors., (2000) 9 SCC 405). 10. In Suresh Kumar & Ors. v. State of Haryana & Ors., (2003) 10 SCC 276, this Court upheld the judgment of the Punjab & 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 12 publicity for inviting applications from the eligible candidates at large. 11. In Union Public Service Commission v. Girish Jayanti Lal Vaghela & Ors., AIR 2006 SC 1165, this Court held: (SCC p. 490, para 12) “12........The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made…………Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution.” (Emphasis added) 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., Bhopal v. Nanuram Yadav & Ors., (2007) 8 SCC 264 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. 13 (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 t o 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 Secretary, State of Karnataka & Ors. v. Umadevi & Ors., 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 & Anr. v. Mamata Mohanty, (2011) 3 SCC 436, 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) 14 “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 notice board, 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.” 15. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the Judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is 15 contrary to the statutory rules and the person holding the post has no right to hold it. (Vide: The University of Mysore & Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491; Shri Kumar Padma Prasad v. Union of India & Ors., AIR 1992 SC 1213; B.R. Kapur v. State of Tamil Nadu & Anr., AIR 2001 SC 3435; The Mor Modern Co-operative Transport Society Ltd. v. Financial Commissioner and Secretary to Govt., Haryana & Anr., AIR 2002 SC 2513; Arun Singh v. State of Bihar & Ors., AIR 2006 SC 1413; Hari Bansh Lal v. Sahodar Prasad Mahto & Ors., AIR 2010 SC 3515; and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo & Ors., (2014) 1 SCC 161). 16. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others. 17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appointment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by this Court time and again is “backdoor appointments or appointment dehors the rules”. 18. In State of U.P. & Ors. v. U.P. State Law Officers Association & Ors., (1994) 2 SCC 204 this Court while dealing with the back-door entries in public appointment observed as under: (SCC pp. 217-18, para 19) “19….The method of appointment is indeed not calculated to ensure that the meritorious alone will always be appointed or that the appointments made will not be on the considerations other than merit. In the absence of guidelines, the appointment may be made 16 purely on personal or political consideration and be arbitrary. This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back-door have to go by the same door….From the inception some engagements and contracts may be the product of the operation of the spoils system. There need be no legal anxiety to save them.” (Emphasis added) 19. In Som Raj & Ors. v. State of Haryana & Ors., AIR 1990 SC 1176, this Court held as under: (SCC pp.658-59, para 6) “6……The absence of arbitrary power is the first postulate of rule of law upon which our whole constitutional edifice is based. In a system governed by Rule of Law, discretion when conferred upon an executive authority must be confined within clearly defined limits. The rules provide the guidance for exercise of the discretion in making appointment from out of selection lists which was prepared on the basis of the performance and position obtained at the selection. The appointing authority is to make appointment in the order of gradation, subject to any other relevant rules like, rotation or reservation, if any, or any other valid and binding rules or instructions having force of law. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of Rule of Law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.” “30. In today’s system, daily labourers and casual labourers have been conveniently introduced which are followed by attempts to regularise them at a subsequent stage. Therefore, most of the times the issue raised is about the procedure adopted for making appointments indicating an improper exercise of discretion even when the rules specify a particular mode to be adopted. There can be no doubt that the 17 employment whether of Class IV, Class III, Class II or any other class in the High Court or courts subordinate to it fall within the definition of “public employment”. Such an employment, therefore, has to be made under rules and under orders of the competent authority. 31. In a democratic set up like ours, which is governed by rule of law, the supremacy of law is to be acknowledged and absence of arbitrariness has been consistently described as essence of rule of law. Thus, the powers have to be canalised and not unbridled so as to breach the basic structure of the Constitution. Equality of opportunity in matters of employment being the constitutional mandate has always been observed. The unquestionable authority is always subject to the authority of the Constitution. The higher the dignitary, the more objectivity is expected to be observed. We do not say that powers should be curtailed. What we want to say is that the power can be exercised only to the width of the constitutional and legal limits. The date of retirement of every employee is well known in advance and therefore, the number of vacancies likely to occur in near future in a particular cadre is always known to the employer. Therefore, the exercise to fill up the vacancies at the earliest must start in advance to ensure that the selected person may join immediately after availability of the post, and hence, there may be no occasion to appoint any person on ad-hoc basis for the reason that the problem of inducting the daily labourers who are ensured of a regular appointment subsequently has to be avoided and a fair procedure must be adopted giving equal opportunity to everyone.” 7. A learned Division Bench of this Court (of which I was one of the Member) in Lal Singh versus H.P. State Co-operative Milk Producers Federation Limited, LPA No.282 of 2010, decided on 17th November, 2015, dealt with a question as to whether the adhoc appointment/temporary arrangement/stop-gap arrangement will not create any right, title or interest and it was held :- 18 “15. The Apex Court, in a series of cases, has considered the question as to whether ad hoc appointment/temporary arrangement/stop gap arrangement will create any right, title, equity or interest. 16. The Apex Court in a case titled as Director, Institute of Management Development, U.P. versus Smt. Pushpa Srivastava, reported in AIR 1992 Supreme Court 2070, held that a person, who was appointed on ad hoc basis or without following the due process, cannot claim any right for his regularization. It is apt to reproduce paras 22 and 23 o f the judgment herein: \"22. In dealing with this, at page 577 (of 1990 (1) Supp SCR 562) : (at p. 2238 of AIR 1990 SC 2228), the Court observed: \"If any person who does not possess the requisite qualifications is appointed under the said clause, he will be liable to be replaced by a qualified person. Clause (iii) of Rule 9 states that a person appointed under clause (i) shall, as soon as possible, be replaced by a member of the service or an approved candidate qualified to hold the post. Clause (e) of Rule 9, however, provided for regularisation of service of any person appointed under clause (1) of sub-rule (a) if he had completed continuous service of two years on December 22, 1973, notwithstanding anything contained in the rules. This is a clear indication that in the past the Government also considered it Just and fair to regularise the services of those who had been in continuous service for two years' period to the cut-off date. The spirit underlying this treatment clearly shows that the Government did not consider it just, fair or reasonable to terminate the services of those who were in employment for a period of two or more years' period to the cut-off date. 'This approach is quite consistent with the spirit of the rule which was intended to be invoked to serve emergent situations which could not brook delay. Such appointments were intended to be stop-gap temporary appointments to serve the stated purpose and not long term ones. The rule was not intended to fill a large number of posts in the service but only those which could not be kept vacant till regular appointments were made in accordance with the rules. But once the appointments continued for long, the services had to be regularised if the incumbent possessed the requisite qualifications as was done by sub- rule (e). Such an approach alone would be consistent with the constitutional philosophy adverted to earlier. Even otherwise, the rule must be so interpreted, if the language of the rule 19 permits, as will advance this philosophy of the Constitution. If the rule is so interpreted it seems clear to us that employees who have been working on the establishment since long, and who possess the requisite qualifications for the job as obtaining on the date of their employment, must be allowed to continue on their jobs and their services should be regularised.\" 23. In the instant case, there is no such rule. The appointment was purely ad hoc and on a contractual basis for a limited period. Therefore, by expiry of the period of six months, the right to remain in the post comes to an end.\" 17. The Apex Court in another case titled as State of Karnataka and others versus P.M. Bhaskara Gowda and others, reported in AIR 2004 Supreme Court 317, laid down the same principle. 18. In the cases titled as Chief Commissioner of Income- tax, Bhopal & Ors. versus M/s. Leena Jain & Ors., reported in 2006 AIR SCW 6066, Accounts Officer (A & I), APSRTC & Ors., versus K.V. Ramana & Ors., reported in 2007 AIR SCW 1185, and Rajasthan Krishi Vishva Vidhyalaya, Bikaner versus Devi Singh, reported in 2008 AIR SCW 1383, held that an employee cannot claim regularization merely on the basis of long rendition of service. 19. This question again arose for consideration before the Apex Court in the case titled as State of U.P. & Anr. versus Ram Adhar, reported in 2008 AIR SCW 5479, wherein it has been held that a person appointed in a temporary capacity has no right to continue till regular selection is made. It is apt to reproduce para 5 of the judgment herein: \"5. It may be mentioned that there is no principle of law that a person appointed in a temporary capacity has a right to continue till a regular selection Rather, the legal position is just the reverse, that is, that a temporary employee has no right to the post vide State of U.P. v. Kaushal Kishore, (1991) 1 SCC 691. Hence, he has no right to continue even for a day as of right, far from having a right to continue till a regular appointment.\" 20. We have laid down our hands on a judgment, which has arisen from the judgment rendered by a learned Single Judge of this Court in Ravinder Singh versus State of H.P. & ors., reported in 2006 Lab. I.C. 1409. In terms of the said judgment, the learned Single Judge of this Court directed the State 20 Government to consider the case of an employee, who was appointed on daily rated basis, for regularization, which came up for consideration before the Apex Court in the case titled as State of Himachal Pradesh & Anr. versus Ravinder Singh, reported in 2009 AIR SCW 452 and the judgment of this Court was set aside. It is profitable to reproduce paras 8 and 9 of the judgment herein: \"8. In addition it has to be noted that the Labour Court had observed that the name of the respondent claimant was not sponsored by the employment exchange; there was no appointment order; the requirements relating to procedure to be followed at the time of recruitment were also not fulfilled. There was a mere back- door entry. It was further noted that they were not selected in the manner as applicable to regular employees who are liable to be transferred and are subject to disciplinary proceedings to which daily-rated workers are not subjected to. 9. In the background of what has been stated above the directions given for regularization in the post of c lerk being indefensible are set aside. However, undisputedly the appellants had regularized the services of the respondent as a Chowkidar in July, 1997 which the respondent had refused. If the respondent is so advised, he may accept the order in that regard by submitting the requisite documents within six weeks from today. If not so done, the respondent shall not be entitled to any relief in terms of the High Court s impugned order which as noted above we have set aside.” 8. In view of the e xposition of law, it can safely be held that the petitioners who were appointed through the backdoor must leave from the same door. 9. Learned counsel for the petitioners would then argue that the respondents should not be permitted to out source the services against which they are working as the same is against the law and as per the judgment of the Hon’ble Supreme Court in Rattanlal and others etc. etc. versus State of Haryana and others AIR 1987 SCC 478. 10. I have considered the aforesaid submissions in light of the judgment cited by the learned counsel for the petitioners and find that 21 the precedent as sought to be relied upon is not at all applicable to the facts of the present case. In Rattanlal’s case (supra), the teachers were being appointed on adhoc basis for years together and were being illegally and arbitrarily hired and fired and taking into consideration these facts, the State of Haryana was directed to make regular appointments of teachers and also consider sympathetically the cases of the adhoc teachers for relaxing the age prescribed for appointment to these posts. Whereas, in the instant case, the services of the petitioners were availed off in exigency of service when the respondent- College became partially operational in the year 2012. The appointment of the petitioners was neither through the Employment Exchange nor through some method consistent with Article 14 of the Constitution. It is only on the basis of applications submitted by the petitioners and thereafter walk-in-interview conducted by the respondents that the petitioners came to be engaged on consolidated salaries that too for three months. 11. The other issue raised in CWP No.618 of 2014 to the effect that the services of the petitioner should not have been dispensed with by appointing another person in her place in the subsequent selection has been rendered academic in view of the stand now taken by the respondents wherein it has been categorically mentioned that the services against which the petitioner had been appointed are to be out sourced. 12. Insofar as the question of out sourcing is concerned, the same is the sole discretion of the respondents being a matter of policy. It is more than settled that policy decision can be interfered with on very limited ground and only if it is proved that the policy is arbitrary or 22 malafide or manifestly contrary to public interest. The individual grievance of the petitioners cannot partake the form of public interest and it is neither within the domain of the Courts nor the scope of judicial review to embark upon an inquiry as to whether a particular public policy is wise or a better public policy could have been evolved. The Courts are not inclined to strike down the policy at the behest of the petitioners merely because it is urged that a different policy would have been fairer or wiser, more scientific or more logical. Therefore, unless the policy or action is inconsistent with the Constitution and the laws are arbitrary or irrational or abuse of the power, the Court will not interfere with such matters. 13. In view of the aforesaid discussion, there is no merit in these petitions and the same are accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any also stand disposed of. The Registry is directed to place a copy of this judgment on the files of connected matters. Interim orders dated 24.01.2014, 29.05.2014 and 05.06.2014 are vacated. December 1st , 2015. (Tarlok Singh Chauhan), (krt) Judge. "