# Desh Raj Mishra v. Chief Medical Superintendent Officer and another

- **Citation:** (2004) 2 ILRA 473
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-05-12
- **Case number:** Civil Misc. Writ Petition No. 28894 of 1996
- **Bench:** R.S. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/desh-raj-mishra-v-chief-medical-superintendent-officer-and-another-40405
- **Pages:** 6

## Headnote

Constitution of India, Articles 14 and 16-
U.P. Subordinate Offices Ministerial Staff
Rules, 1985-Appointment made dehory
without following procedure of Selection
and appointment without any sanctioned
post, held, illegal and violative of Articles
14 and 16- Petitioner not entitled to any
salary- Not discriminatory.

Therefore, any appointment made by a
Statutory Authority, which may be a State
within the meaning of Article 12 of the
Constitution, if found to have been made
by a person without any competence or
without
following
the
procedure
prescribed by law and in case the
procedure is not prescribed and the
procedure adopted by the Authority is not
in consonance with Articles 14 and 16 of
the Constitution, the incumbent claim any
benefit as in such a case the contract of
service becomes unenforceable and in
executable.

Para 12

If the view contrary to the above is
accepted, the same would override the
mandate of the Constitution also, it will
take away the powers of the High Court
to issue a writ of quo warranto, wherein
the appointment of an incumbent can be
challenged not only by an aggrieved
persons but a stranger also. Invalidity of
an appointment may arise not only from
want of qualification, but also from the
violation of such legal conditions or
procedure for appointment as mandatory
and as a result of which the appointment
becomes void.

Para 13

I have heard learned counsel for the
parties. I find that there was no vacancy
and the procedure prescribed by the
rules relevant to the selection to the post
of
junior
grade
clerk
and
the
appointment said to have been made
was not in consonance to the provisions
of relevant rules applicable, as such the
selection was bad. The petitioner being
beneficiary appointed as a product of
spoiled system, or defective system shall
have no right to the post or as such he is
not entitled to the salary. The petitioner
has not named any of the person
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
474
similarly situated in respect of whom he
is said to have been discriminated,
therefore, the petitioner could not derive
any benefit on this aspect. No other
point has been argued, or pressed in the
writ petition.

Para 17
Case law discussed:
(1995) 1SCC 138
1995 (supp) 4SCC 706
(1996) 7 SCC 118
(1997) 6 SCC 574
AIR SC 3456
AIR 1997 SC 3464
(1999) 9 SCC 573
(1999) 6 SCC 255
AIR 1992 SC 789
AIR 1992 SC 2130
AIR 1991 SC 101
(1993) 2 SCC 213
AIR 1995 SC 962
AIR 1994 SC 1654
(1998) 8SCC 99
(2001) 7 SCC 231
(1999) 7 SCC 209
(1997) 5 SCC 201
(2000) 1 SCC 600
AIR 1961 SC 1107
AIR 1965 SC 491
AIR 1975 Delhi 66
(2000) 6 SCC 554
W.P. 1648 of 1986, decided on 18.12.2003
2004 (1) ESC 444 (All) DB

## Text

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2 All] Desh Raj Mishra V. Chief Medical Superintendent Officer and another
473
affording
any
opportunity
to
the
petitioner. The rights of the petitioner had
already accrued in his favour once he had
been granted promotion on a class III post
vide order dated 13.1.1992. If the
respondents were to pass an order to the
detriment of the petitioner, it is well
settled law that the petitioner would
necessarily be required to be given an
opportunity
of
hearing,
which
has
admittedly not been given in the present
case. As such the impugned order is liable
to be quashed on this ground also.

9. For the foregoing reasons the
impugned order dated 11.5.1992 passed
by the Respondent no. 1 is quashed. The
writ petitioner shall be entitled to continue
to work on the class III post on which he
had been promoted by order dated
13.1.1992.

In the result the writ petition
succeeds and is allowed. No order as to
cost.

Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.5.2004

BEFORE
THE HON'BLE R.S. MISRA, J.

Civil Misc. Writ Petition No. 28894 of 1996

Desh Raj Mishra

...Petitioner
Versus
Chief Medical Superintendent Officer and
another

 ...Respondents

Counsel for the Petitioner:
Sri K.K. Singh

Counsel for the Respondents:
Sri R.P. Srivastava
S.C.

Constitution of India, Articles 14 and 16-
U.P. Subordinate Offices Ministerial Staff
Rules, 1985-Appointment made dehory
without following procedure of Selection
and appointment without any sanctioned
post, held, illegal and violative of Articles
14 and 16- Petitioner not entitled to any
salary- Not discriminatory.

Therefore, any appointment made by a
Statutory Authority, which may be a State
within the meaning of Article 12 of the
Constitution, if found to have been made
by a person without any competence or
without
following
the
procedure
prescribed by law and in case the
procedure is not prescribed and the
procedure adopted by the Authority is not
in consonance with Articles 14 and 16 of
the Constitution, the incumbent claim any
benefit as in such a case the contract of
service becomes unenforceable and in
executable.

Para 12

If the view contrary to the above is
accepted, the same would override the
mandate of the Constitution also, it will
take away the powers of the High Court
to issue a writ of quo warranto, wherein
the appointment of an incumbent can be
challenged not only by an aggrieved
persons but a stranger also. Invalidity of
an appointment may arise not only from
want of qualification, but also from the
violation of such legal conditions or
procedure for appointment as mandatory
and as a result of which the appointment
becomes void.

Para 13

I have heard learned counsel for the
parties. I find that there was no vacancy
and the procedure prescribed by the
rules relevant to the selection to the post
of
junior
grade
clerk
and
the
appointment said to have been made
was not in consonance to the provisions
of relevant rules applicable, as such the
selection was bad. The petitioner being
beneficiary appointed as a product of
spoiled system, or defective system shall
have no right to the post or as such he is
not entitled to the salary. The petitioner
has not named any of the person
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
474
similarly situated in respect of whom he
is said to have been discriminated,
therefore, the petitioner could not derive
any benefit on this aspect. No other
point has been argued, or pressed in the
writ petition.

Para 17
Case law discussed:
(1995) 1SCC 138
1995 (supp) 4SCC 706
(1996) 7 SCC 118
(1997) 6 SCC 574
AIR SC 3456
AIR 1997 SC 3464
(1999) 9 SCC 573
(1999) 6 SCC 255
AIR 1992 SC 789
AIR 1992 SC 2130
AIR 1991 SC 101
(1993) 2 SCC 213
AIR 1995 SC 962
AIR 1994 SC 1654
(1998) 8SCC 99
(2001) 7 SCC 231
(1999) 7 SCC 209
(1997) 5 SCC 201
(2000) 1 SCC 600
AIR 1961 SC 1107
AIR 1965 SC 491
AIR 1975 Delhi 66
(2000) 6 SCC 554
W.P. 1648 of 1986, decided on 18.12.2003
2004 (1) ESC 444 (All) DB

(Delivered by Hon'ble R.B. Misra, J.)

Heard Sri K.K. Singh, learned
counsel for the petitioner and the learned
Standing Counsel for the respondents.

1. In this petition prayer has been
made for issuance of writ of mandamus
directing the respondents to pay the
arrears of salary of the petitioner from the
date of appointment i.e. 1.3.1993 and for
payment of salary month to month.

2.

Brief
fact
necessary
for
adjudication of the case is that petitioner
was appointed to the post of Junior grade
clerk as daily wager on 1.3.93. Thereafter
his services was regularized on the same
post by the order dated 28.5.93 in the pay
scale of Rs. 950/- 1500/- and the
petitioner has continuously been working
since the date of his initial appointment
but no salary is being paid to him and no
heed was taken on the request and
representation of the petitioner and
despite t he advice of the learned Standing
Counsel also to make the payment to the
petitioner, he is not being paid salary.

3. According to the petitioner large
number of similar situated persons are
also working and being paid salary and
the petitioner is being discriminated under
the provisions of Articles 14 and 16 of the
Constitution.

4. Counter affidavit has been filed.
As
contended
on
behalf
of
the
respondents that two posts of lower
division clerk were created on 5.3.91 in
District
Hospital,
Sonbhadra
against
which two persons namely, Sri Dharmesh
Kumar and Sri Virendra Kumar Singh
were appointed by appointment letter
dated 10.6.91. Thereafter neither any post
of lower division clerk was created nor
any post had fallen vacant. However,
when
the
then
Chief
Medical
Superintendent Officer Dr. O.N. Rai was
on leave for two days i.e. On 28.5.93 and
29.5.93, an order said to have been issued
on 28.5.93 by the then Senior Medical
Superintendent
who
took
over
the
additional charge of Chief Medical
Superintendent
of
district
hospital,
Sonbhadra through which the petitioner
appears to have been appointment without
following the procedure of selection and
appointment in an illegal and irregular
manner without any sanctioned post in the
office and the utter violation of the
provisions of U.P. Subordinate Offices
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2 All] Desh Raj Mishra V. Chief Medical Superintendent Officer and another
475
Ministerial Staff Rules, 1985. When Dr.
O.N. Rai came back from two days causal
leave the illegality in the appointment was
brought to his knowledge immediately ad
such appointment order was cancelled on
1.6.93.

5. According to the respondents the
Secretary, Medical Health and Family
Planning, State Government of U.P. Has
already imposed a ban on all irregular
appointment vide circular dated 10.10.90
whereby any appointment against an
existing vacancy was also to be made
after
obtaining
against
an
existing
vacancy was also to be made after
obtaining permission/approval from the
State
Government.
It
has
been
emphatically asserted on behalf of the
respondents that the petitioner has never
worked and on the basis of the illegal and
irregular
alleged
appointment,
the
petitioner cannot be paid any salary.
However since the said appointment in
question dehores the rules and was made
without
any
vacancy
and
selection
process, therefore, at the wisdom of
respondents the same was cancelled.

6. The question of appointment
dehors the Rules has been considered by
the Supreme Court from time and again
and the Court held that such appointments
are unenforceable and inexecutable. It is
settled
legal
proposition
that
any
appointment made dehors the Rules
violates the Public Policy enshrined in the
rules and, thus, being void, cannot be
enforced. (Vide Smt. Ravinder Sharma &
Anr. Vs. State of Punjab & ors., (1995) 1
SCC 138, Smt. Harpal Kaur Chahal Vs.
Director,
Punjab
Instructions,
1995
(suppl.) 4 SCC 706, State of Madhya
Pradesh Vs. Shyama Pardhi, (1996) 7
SCC 18, State of Rajasthan Vs. Hitendra
Kumar Bhat, (1997) 6 SCC 574, Patna
University Vs. Dr. Amita Tiwari, AIR SC
3456, Madhya Pradesh Electricity Board
Vs. S.S. Modh & ors., AIR 1997 SC
3464, Bhagwan Singh Vs. State of Punjab
and ors., (1999) 9 SCC 573 and
Chancellor Vs. Shankar Rao & ors.
(1999) 6 SCC 255.

7. Appointment dehors the Rules
violates the mandate of the provisions of
Article 14 and 16 of the Constitution as
held by the Supreme Court in Delhi
Development
Horticulture
Employees'
Union Vs. Delhi Administration, AIR
1992 SC 789 and State of Haryana & ors.
Vs. Piara Singh, AIR 1992 SC 2130. In
Delhi Transport Corporation Vs. D.T.C.,
Mazdoor Congress & ors. AIR 1991 SC
101, the Supreme Court recognised the
public employment as public property and
held that all persons similarly situated
have a right to share in it though its
enjoyment is subject to the recruitment
rules which must be in consodnance with
the Scheme of the Constitution of India.

In Dr. M.A. Haque & ors. Vs. Union
of India& ors., (1993) 2 SCC 213, the
Supreme Court observed as under: -

".....We cannot lose sight of the fact
that the recruitment rules made under
Article 309 of the Constitution have to be
followed strictly and not in breach. If a
disregard of the rules and by passing of
the Public Service Commissions are
permitted, it will open a back door for
illegal recruitment without limit. In fact
this Court has, of late, been witnessing a
constant violation of the recruitment rules
and a scant respect for the constitutional
provisions requiring recruitment to the
services through the Public Service
Commission. It appears that since this
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
476
Court has in some cases permitted
regularisation of the irregularly recruited
employees,
some
governments
and
authorities
have
been
increasingly
resorted to irregular recruitments. The
result had been that the recruitment rules
and the Public Service Commissions have
been kept in cold storage and candidate
dictated by various considerations are
being recruited as a matter of course."

9. Deprecating the practice of
making appointment dehors the Rulesk by
the State or other state instrumentalist in
Dr. Arundhati A. Pargaonkar Vs. State of
Maharastra AIR 1995 SC 952, the Court
rejected the claim of the petitioner therein
for regularisation on the ground of long
continuous service observing as under:-

"Nor the claim of the appellant, that
she having worked as Lecturer without
break for 9 years' on the date the
advertisement was issued, she should be
deemed to have been regularised appears
to be well founded. Eligibility and
continuous working for howsoever long
period should not be permitted to over
reach the law. Requirement of rules of
selection ....cannot be substituted by
humane considerations. Law must take its
course."

10. The Supreme Court in State of
U.P. & ors. Vs. U.P. State Law Officers
Association & ors. AIR 1994 SC 1654 has
observed as under: -

"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.... The fact that they are
made by Public bodies cannot best them
with
additional
sanctity.
Every
appointment made to a public office,
howsoever made, is not. 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."

Even if there are no Statutory Rules
or Bye laws of the society providing a
mode of appointment, the Executive
Instructions/Policy
adopted
by
the
respondent-
society
must
be
there
providing for a mode of appointment.
Even if no such Executive Instructions
/Policy/Guidelines/Circular
etc.
is
in
existence then a fair procedure for
appointment has to be adopted in
consonance
with
the
provisions
of
Articles 14 and 16 of the Constitution.
(Vide Nagpur Improvement Trust Vs.
Yadaorao Jagannath Khumbhare, (1998)
8 SCC 99).

11. In Ramesh Kumar Sharma &
Anr.
Vs.
Rajasthan
Civil
Services
Appellate Tribunal & ors. AIR 2000 SCW
4206, the Supreme Court held that '
expression ' service Rules' cannot be
given a restrictive meaning in the absence
of the definition of the said terms and,
therefore, it would include within its
sweep, the necessary government order
providing the method recruitment."

12. A Constitution Bench of the
Supreme Court, in B.R. Kapoor Vs. State
of Tamil Nadu, (2001) 7 SCC 231,
(Jayalalitha case) observed that it is the
duty of the Court to examine whether the
incumbent possesses qualification for
appointment and the manner in which the
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2 All] Desh Raj Mishra V. Chief Medical Superintendent Officer and another
477
appointment came to be made or the
procedure adopted was fair, just and
reasonable and if not, appointment should
be struck down.

13.

The
Supreme
Court
(Constitution Bench) in Ajit Singh (II)
Vs. State of Punjab & ors., (1999) 7 SCC
209, has held that Articles 14 and 16 (1)
are basic features of the Constitution. The
same view hasd been reiterated in Ashok
Kumar Gupta Vs. State of U.P. And ors.
(1997) 5 SCC 201, and Indra Sawhney
Vs. Union of India & ors. (2000) 1 SCC
168. Thus strict adherence is required
thereto.

14. In Kumari Shrilekha Vidhyarthi
etc. Vs. State of U.P. and others, AIR
1991 SC 537, and A.P. Agarwal Vs.
Government (NCT) of Delhi & ors. (2000)
1 SCC 600, the Supreme Court held that
every State action, in order to survive,
must not be susceptible to vice the
arbitrariness which is a crux of Article 14
of the Constitution and the very basis of
the Rule of Law.

Therefore, any appointment made by
a Statutory Authority, which may be a
State within the meaning of Article 12 of
the Constitution, if found to have been
made
by
a
person
without
any
competence or without following the
procedure prescribed by law and in case
the procedure is not prescribed and the
procedure adopted by the Authority is not
in consonance with Articles 14 and 16 of
the Constitution, the incumbent claim any
benefit as in such a case the contract of
service becomes unenforceable and in
executable.

If the view contrary to the above is
accepted, the same would override the
mandate of the Constitution also, it will
take away the powers of the High Court to
issue a writ of quo warranto, wherein the
appointment of an incumbent can be
challenged not only by an aggrieved
persons but a stranger also. Invalidity of
an appointment may arise not only from
want of qualification, but also from the
violation of such legal conditions or
procedure for appointment as mandatory
and as a result of which the appointment
becomes void. (vide M. Pantiah & ors.
Vs. Muddddala Veeramllappa & ors. AIR
1961 SC 1107, University of Mysore Vs.
C.D.Govinda Rao, AIR 1965 SC 491 and
P.N. Lakhanpal Vs. A.N.Roy, AIR 1975
Del. 66). There can be no quarrel to issue
that the Board is an Authority, which is a '
State' within the meaning of Article 12 of
the Constitution. Thus, question of saving
such an illegal appointment did not arise.

15. The instant cases are squarely
covered by the judgment of the Supreme
Court in Factory Manager, Cimmco
Wagon Factory Vs. Virendra Kumar
Sharma & Anr. (2000) 6 SCC 554,
wherein
the
Supreme
Court,
while
deciding the similar case, has observed as
under:

"Assuming that the respondent was
asked to work in a factory in anticipation
of securing appointment, that too by an
officer who was not competent to give
appointment, that did not make the
respondent a workman or regular
employee of the appellant company. "

16. This Court (Hon'ble R.B. Misra,
J.) by the order dated 18.12.2003 passed
in writ petition no. 1648 of 1986
(Mahendra Misra Vs. Up Nideshak
(Prashasan) Rajya Krishi Utpadan Mandi
Parishad and another) after considering
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
478
large number of cases of this Court Single
Bench as well as Division Bench and
large number of cases of Supreme Court
has held that selection/recruitment or
appointment to any post if some how
made and benefits/gains were derived by
the beneficiary appointee illegally and if
at subsequent stage it is noticed that the
illegalities, irregularities, improprieties,
procedural infirmities and deficiencies or
defects occurred in the selection or such
appointments were detected on the basis
of complaint or at subsequent stage during
adjudication of case and it is noticed that
the out put and product of such defective
and bad selection is outcome of spiled and
defective system and appointment has
been obtained by forgery or foul play
adopted or by non observance of Act,
rules, norms were made in process of
selection
or
appointment
then
the
beneficiary candidate, who has become
output and product of such defective/bad,
selection or outcome of spiled system,
shall have no right or claim to the post or
salary or any consequential benefits in the
service by virtue of such selection or
appointment or gains in any form being
illegal or void or non-est and being
violative of the provisions of Articles 14
and 16 of the Constitution.

17. Similarly this Court (DB) in
2004 (1) ESC Allahabad Page 444
(Arvind Kumar Pipal and others vs.
Commissioner, Trade Tax, UP Lucknow
and others) did not interfere in the
selection
or
the
appointment
made
irregularly and illegally.

18. I have heard learned counsel for
the parties. I find that there was no
vacancy and the procedure prescribed by
the rules relevant to the selection to the
post of junior grade clerk and the
appointment said to have been made was
not in consonance to the provisions of
relevant rules applicable, as such the
selection was bad. The petitioner being
beneficiary appointed as a product of
spoiled system, or defective system shall
have no right to the post or as such he is
not entitled to the salary. The petitioner
has not named any of the person similarly
situated in respect of whom he is said to
have been discriminated, therefore, the
petitioner could not derive any benefit on
this aspect. No other point has been
argued, or pressed in the writ petition.

In these circumstances, this writ
petition is dismissed. Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.5.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Second Appeal No. 326 of 1998

Subodh Kumar Pandey
...Petitioner
Versus
The District Judge, Maharajganj and
another

 ...Respondents

Counsel for the Appellant:
Sri Anil Bhushan

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Service
Law-Termination-Temporary employeehas no right to hold the post-Merely
because
District
Judge
took
into
consideration
fact
that
appellant
habitual of comes to office after drinking