Service Matter – Back Door Posting – Temporarily appointed to the post of constable – show cause notice issued and service was also terminated – single judge dismissed the writ – DB allowed the writ – Apex court held that in the absence of any advertisement or selection process, the appointment of the respondent is not protected and could be validly terminated. Learned single Judge was justified in dismissing the writ petition while the Division Bench erred in interfering with the same. =
The respondent was temporarily appointed to the post of constable by
the Inspector General of Police, Criminal Investigation Department, Patna,
Bihar, vide his order dated 14.01.1988 with the stipulation that his
service could be terminated without assigning any reason or show cause. In
the year 2000, the High Court of Patna considered the issue of backdoor
appointments made in the police department in another case which led to a
direction by the Department of Home (Police), Government of Bihar dated
04.09.2000 to the Police Headquarter, Bihar to review irregular
appointments and to remove such appointees from service.
4. Accordingly, a show cause notice dated 10.09.2003 was issued to the
respondent-writ petitioner asking him why his appointment should not be
cancelled and since no valid reason was shown in his reply, order dated
26.09.2003 was passed terminating the services of the respondent.=
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.”
Accordingly, it has to be held that in the absence of any
advertisement or selection process, the appointment of the respondent is
not protected and could be validly terminated. Learned single Judge was
justified in dismissing the writ petition while the Division Bench erred in
interfering with the same.
17. Accordingly, we allow this appeal, set aside the order dated
05.01.2012 passed by the Division Bench of the High Court in L.P.A. No. 945
of 2010 and restore the order dated 09.04.2010 passed by the learned
single Judge of the High Court in C.W.J.C. No.204 of 2004.
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