CHAUHAN, J. - (1.) THE instant writ petition has been filed for quashing the order dated 15.10.1996 (Annex. 6) by which the Government had issued a direction that there was no sanctioned post for Assistant Secretary in the Rajasthan Panchayati Raj Act, therefore, no person be appointed on the said post.
(2.) THE facts and circumstances giving rise to this case are that the petitioner claims to have been appointed as Assistant Secretary by the respondent on a fixed salary of Rs. 800/-per month and he apprehend that he would be removed from service in pursuance of the said order. THE Court, on 21.8.2001, has directed the petitioner to place the advertisement on the basis of which he had been offered appointment on record. THE petitioner had filed an additional affidavit enclosing the copy of the advertisement which is a hand written note issued by the Sarpanch to be affixed on the notice boards of Gram Panchayats of three villages only. Miss Rao, learned counsel appearing for the respondents has submitted that the post in question is not in existence, therefore, the petitioner has no right to continue on the post. She further submitted that the so-called advertisement cannot be held in any sense to be an advertisement for a post under the State even if it is assumed that at the relevant time, the post could have been filled up by the respondents. Post has to be filled up after publication of notice inviting applications in the newspaper having wide circularation in the locality and in case, such a course has not been adopted, the appointment is to be treated, as having been made dehors the Rules. Thus, in view of the above Miss Rao has submitted that petitioner has no right to continue in service as his appointment having been made without advertisement of post cannot be enforced, nor there is any occasion for the writ Court to protect such a illegal appointment. The question arises as to whether a person who has been appointed without advertising the vacancy or calling the names from the Employment Exchange can be heard by a writ court if his services are terminated or are likely to be terminated and whether in such a case principles of natural justice are attracted and whether holding of an enquiry is required at all and as to whether a person appointed by a spoiled system has a right to continue in office. In State of Haryana vs. Piara Singh (1), the Apex Court has held that even for a short term vacancy, adhoc appointment can be made by advertising the vacancy in local news-papers otherwise the appointment shall be hit by the provisions of Articles 14 and 16 of the Constitution of India. Similar view has been reiterated by the Hon'ble Supreme Court in Prabhat Kumar Sharma and others vs. State of U.P. (2) and JAS Inter College, Khurja and others vs. State of U.P. & Others (3). Further question arises in view of the judgments in the Excise Superintendent vs. K.B.N. Vishwavarraiya and others (4), wherein the Hon'ble Supreme has over- ruled its earlier judgment in Union of India vs. N. Hargopal (5), wherein it had been held that appointment by calling the names from the Employment Exchange is valid. In subsequent case, the Hon'ble Supreme Court had take a view that in addition to calling the names from the Employment Exchange, vacancy has to be advertised in the local news-papers and the appointment only by calling the names from the Employment Exchange will be hit by the provisions of Arts. 14 & 16 of the Constitution of India for the reason that those persons who had not get their names registered with the Employment Exchange cannot be discriminated merely on that grounds. An exception to the same had been carved out in a subsequent judgment reported in AIR 1988 SC 331 (6) to the extent that advertising the vacancy in local news-papers can be dispensed with only in the exceptional circumstances where there is no time to advertise the vacancy and only in case of grave urgency, appointment can be made only by calling the names from the Employment Exchange. Therefore, question itself arose whether a person who has been appointed dehors the rules has a right to continue in office even if his termination is illegal. The question of appointment dehors the Rules has been considered by the Hon'ble Supreme Court from time and again and the Court held that such appointments are unenforceable and unexecutable. 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. Ravindra Kaur Sharma vs. State of Rajasthan (7), Smt. Harpal Kaur Chahal vs. Director, Industries, Punjab (8), State of Madhya Pradesh vs. Shyama Pardhi (9), State of Rajasthan vs. Hitender Kumar Bhatt (10), Patna University vs. Dr. Amita Tiwari (11), Madhya Pradesh Education Board vs. Modh & Ors. (12) and Bhagwan Singh vs. State of Punjab & Ors. (13).
(3.) IN Chancellor vs. Shankar Rao & Ors. (14), the Apex Court held that the recommendations made by the Selection Committee are binding on the Chancellor and he can reject the same only on the ground that the same had been made in contravention of the Statutory Rules/Statute. In Patna University & Anr. vs. Dr. Amita Tiwari (supra), it has been held that the appointment has to be made only in consonance with the recruitment rules. Similarly, in Union Territory of Chandigarh Administration & Ors. vs. Managing Society, Goswami G.D.S.T.C., (15), it has been held that the terms of contract must be read and enforced in consonance with the statute and not otherwise even if the contract contains the terms contrary to the statutory provisions. Similarly, in A. Mahadaswaran & Ors. vs. Government of Tamil Nadu & Ors. (16), it has been held that a person can have a legitimate expectation only in consonance with the statute and the rules framed thereunder and not in contravention of the same. The reason for the same is that the appointment dehors the Rules violates the mandate of the provisions of Articles 14 and 16 of the Constitution as held by the Hon'ble Supreme Court in Delhi Development Horticulture Employees Union vs. Delhi Administration (17), and Piara Singh (supra). ;