Seth, J. - (1.) An advertisement was issued for temporary Data Entry Operators in the Computer Section by the High Court. Pursuant to such notice, the petitioners had applied. It is alleged that after certain tests, a panel was prepared. However, no particulars of the interview letters or the manner in which the interview was held or the details of the process of the selection has since been asserted. The petitioners were given appointment. In the appointment letter, the appointment was described to be temporary and contractual on piece rate basis. It also provided a period of probation of one month. Subsequently in 1999, 25 posts were sanctioned. In 2000, the High Court Services (Appointment, Probation and Confirmation) Rules, 1981 was amended to include Data Entry Operators. Against these sanctioned posts, a recruitment process was undertaken under the amended 1981 Rules. In the recruitment process along with the candidates from Employment Exchange the petitioners were also allowed to participate after relaxing age bar. The successful candidates included some of the contractual employees. They have been given appointment. The petitioners, after having been unsuccessful in the selection process, had filed this writ petition claiming that they were given appointment on temporary basis and after probation period was over, their services having not been terminated, they were entitled to regulariza- tion.
(2.) Mr. Dutta, appearing for the petitioners, had contended that this appointment was given on the basis of sanctioned planned expenditure, which presupposes sanctions of the posts. There cannot be any planned expenditure on employees in an unsanctioned post. He had cited various decisions to contend that if the appointment is not determined on the expiry of the probation period and an employee is allowed to continue for a long period after the probation period expires, in that event, he is deemed to have been regularized. Even if there is no post but as soon post is sanctioned, the employees are entitled to be absorbed against such sanctioned post before others are recruited in the said post. According .to him, the right of the petitioners had accrued as soon the posts were sanctioned and before the recruitment was held. Therefore, the petitioners were entitled to regulariza- tion. He also referred to the Recruitment Rules and had pointed out that under the Rules, recruitment of the petitioners on temporary posts entitles them to be regularized. He had further contended that when the advertisement was for temporary post, the inclusion of the expression "contractual" in the appointment letter would not change the situation and make the appointment a contractual appointment.
(3.) Mr. Aloke Ghosh, learned Counsel for the respondent High Court, on the other hand, points out that these posts were sanctioned in 1999. The empanelment and appointment of the petitioners in 1996 was purely contractual on piece rate basis at a point of time when the Computer Section was being introduced in the High Court. The planned expenditure was meant for introduction of the Computer Section in the High Court. In the absence of any sanctioned post for the Computer Section, there could not be any process for selection. Only in 1999 when the Rules were amended to make the Recruitment Rules applicable to the Computer Section, recruitment could be Trade under the said Rules. Therefore, the benefit of the said Rules would not be available to the appointment at a point of-time when those Rules were not operative namely at the time of the petitioners' engagement. The temporary engagement on piece rate basis presumably-a contractual one. It never indicated in the advertisement that the appointment would be against existing vacancy or a regular one. In the absence of any post when the jobs are required to be done and cannot wait till sanction of posts are available, in that event, it is open to the employer to .engage persons on contractual basis subject to regular recruitment. A recruitment de hors the Rules does not entitle a person to be regularized. He further contends that after the posts were sanctioned and the Rules were made applicable, a recruitment process was undertaken in which the petitioners were allowed to participate after relaxing age bar. The petitioners participated in the recruitment process without any protest or objection. After having been unsuccessful, they cannot challenge the recruitment as invalid and claim regularization on the strength of their earlier appointment. In support he had relied on a decision in Madan Lal v. State of Jammu & Kashmir, (1995)3 SCC 486. He further contended that the expiry of probation related to the contractual service. Therefore, the decisions cited by Mr. Dutta have no manner of application. Unless there is existence of posts and vacancy, there is no scope of regularization of a person.;