- (1.) THIS is intra Court appeal, under the rules of the Court, against the judgment of the Hon'ble Single Judge dated 3.4.2006 dismissing the appellant's Civil Misc. Writ Petition No. 17358 of 2006.
(2.) WE have heard Shri G.S. Srivastava, learned counsel for the appellant; Shri Y.K. Yadav, learned Standing Counsel appearing for the State-respondent No. 1 and Shri Amit Sthalekar, learned counsel appearing for respondent Nos. 2 and 3 and also perused the record. It appears that the appellant was engaged on purely ad hoc basis for a period of six months as computer operator in the year 2000. It further appears that his service was extended after the expiry of six months. However, since the Hon'ble Administrative Judge refused to grant sanction for further extension, his service was dispensed with. Aggrieved, the appellant preferred the aforesaid writ petition, which has been dismissed by the judgment under appeal. It is an admitted position that the appointment of the appellant was on purely ad hoc basis for a fixed period of six months, which was extended from time to time and when the High Court did not grant approval for further extension, his service was finally terminated. Reference may be made to the judgment of Constitution Bench of the Apex Court in State of Karnataka and others v. Uma Devi and others, 2006 (4) SCC 1, wherein their Lordships held that a person having accepted the appointment on temporary or casual basis with open eyes, cannot subsequently claim absorption merely on the basis of such engagement and the doctrine of legitimate expectation also has no application in such case. Their Lordships further observed that those, who have been employed on daily wages or temporary or on contractual basis have no fundamental right to claim for regularization or absorption in service if not provided by statute. A regular appointment is permissible only by making appointment consistent with the requirement of Articles 14 and 16 of the Constitution.
(3.) LEARNED counsel for the appellant relying on the judgment of Hon'ble Single Judge in Amit Kumar Agarwal and others v. State of U.P. and others, 2006 (2) SAC 359 vehemently contended that the Hon'ble Administrative Judge had no jurisdiction or authority to refuse to grant extension. It is only the Chief Justice, who has been empowered under the Rules to take decision in respect of approval of ad hoc appointment. In our view, this submission a/so has no force. It is no doubt true.that vide circular dated 27.5.1992 all the District Judges were informed that no ad hoc appointment on class III post shall be made without prior approval of Hon'ble the Chief Justice. However, the aforesaid circular nowhere places any obligation upon Hon'ble the Chief Justice that as and when the District Judge finds it expedient to make ad hoc appointment and sent his recommendation, the same must immediately be placed before Hon'ble the Chief Justice for his approval. The circular prohibits ad hoc appointment, unless approval is obtained from Hon'ble the Chief Justice in advance; meaning thereby, in the absence of such approval no ad hoc appointment can be made and if made, the same would be illegal. It is not disputed in the case in hand that no ad hoc appointment of the petitioner-appellant on the post of computer operator was permitted to be made by Hon'ble the Chief Justice from 6.2.2005 and onwards and, therefore, the continuance of the petitioner-appellant by the District Judge, Moradabad vide letters dated 7.4.2005 and 25.7.2005 (Annexures X and XI to the writ petition) was impermissible. In respect to the subordinate Courts, the supervisory jurisdiction on administrative side is to be exercised by this Court. Under the Rules of the Court, there is distribution of some work amongst the Hon'ble Administrative Judges, Hon'ble the Chief Justice, the Administrative Committee and the rest is with Full Court. In respect to class III and IV employees, the individual matters can be seen by the Hon'ble Administrative Judge, but wherever any matter requires order of Hon'ble the Chief Justice, the letters of the District Judge, as per practice prevailing in this Court and which has sanction of Hon'ble the Chief Justice also, are first considered and scrutinized by the Hon'ble Administrative Judge and if he finds satisfied only then the matter is to be proceeded further and is to be placed before Hon'ble the Chief Justice. Each and every letter of the District Judge where he recommends for making ad hoc appointment is not to be placed automatically before Hon'ble the Chief Justice as that would add extraordinary burden upon his Lordship. If the matter is not placed before Hon'ble the Chief Justice no third person can claim, as a matter of right, that he can seek mandamus that such matter must be placed before Hon'ble the Chief Justice, since it is a matter between the various authorities of this Court to examine the genuineness and expediency of engagement of any one on ad hoc basis and no third person can claim that the matter must be examined. It is only when the proposal is found genuine by Hon'ble Administrative Judge, he would direct it to be placed before Hon'ble the Chief Justice and if ultimately accepted by the Hon'ble the Chief Justice and he grants approval, thereafter only the process of making ad hoc appointment would be initiated and not otherwise. In the case in hand, after examining the proposal of the District Judge the Hon'ble Administrative Judge did not find it appropriate to get any ad hoc appointment made in the concerned judgeship, hence at his lever after scrutiny, he declined; meaning thereby, the matter was not processed further. Thus it does not amount to exercise of power by an authority other than Hon'ble the Chief Justice as contemplated vide circular dated 27.5.1992. If we read the circular carefully, what it provides is that the approval if granted for making - ad hoc appointment would be that of Hon'ble the Chief Justice. It does not mean that in the absence of any proposal or at the stage of processing, if the matter is not taken ahead to Hon'ble the Chief Justice even then the said circular is applicable. The submission on the part of the learned counsel for the petitioner-appellant, in our view, is misconceived and cannot be accepted. In Amit Kumar Agarwal (supra) the Hon'ble Administrative Judge favouring the recommendation of the District Judge for making ad hoc appointment forwarded the matter to be placed before Hon'ble the Chief Justice but Hon'ble the Chief Justice declined to accept the said proposal, which was the matter under challenge. In our view, neither the said judgment helps the petitioner-appellant nor otherwise has any application in this case. Where the Hon'ble Administrative Judge makes, recommendation for ad hoc appointment that cannot be said to be binding on Hon'ble the Chief Justice inasmuch as the power of approval being vested in Hon'ble the Chief Justice, it is his Lordship's discretion to accept such recommendation or not. Hon'ble the Chief Justice is not bound by the recommendation of the Hon'ble Administrative Judge, though normally due weight is given to such recommendation. This process of prior approval vide circular dated 27.5.1992 also cannot be said to be judicial or quasi judicial power and, therefore, also it cannot be said that Hon'ble the Chief Justice if passes any order, he has to record reasons. An employer always has discretion and power to decide as to whether he intends to employ some one or not or he needs some additional hands in the form of ad hoc appointment or not. He is not supposed to give reasons even for deciding that he does not need additional hand by way of ad hoc appointment or casual or daily wage engagement. Moreover, where the matter is to be considered by Hon'ble the Chief Justice, it is always believed that being the highest constitutional functionary in the State representing judicial wing Hon'ble the Chief Justice must have exercised power in reasonable manner unless proved to be otherwise. Therefore, the Hon'ble Single Judge in Amit Kumar Agarwal (supra) rightly declined to interfere with the order of Hon'ble the Chief Justice. However, this judgment is wholly inapplicable in the present case.;