Jharkhand High Court

Ranchi University Through Its ... vs Dr. Mrs. Gouri Jilani W/O Dr. Abdul ... on 12 June, 2025

Bench: Sujit Narayan Prasad, Rajesh Kumar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A. No.140 of 2023
                               ------
Ranchi University through its Registrar, Mukund Chandra
Mehta aged about 58 years, having his residence at 306,
Birendra Sudha Apartment, Kali Mandir Road, Burdwan
Compound, P.O and P.S Lalpur, Dist- Ranchi 834001 and
officiating from his office at O/o Registrar, Ranchi University,
P.O- Kotwali, P.S-GPO, Dist-Ranchi
                     ....... Respondent/Revisionist/Appellant
                           Versus
1.     Dr. Mrs. Gouri Jilani W/o Dr. Abdul Quadir Jilani, R/o
University Colony, Near Block No.07, P.O and PS Bariatu, Dist.-
Ranchi.                         .... writ Petitioner/Respondent
2. State of Jharkhand.
3. The Director, HRD Department, Higher Education,
Government of Jharkhand, Ranchi, officiating from his office at
Project Bhawan, P.O and P.S Jaganathpur, Dist-Ranchi.
                 .... .... Respondent/Respondent/Respondent
4. The Hon'ble Chancellor, Ranchi University, officiating from
his office at Raj Bhawan, P.O and P.S Kotwali, Dist-Ranchi.
.... Respondent/Performa Respondent/Performa Respondent

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE RAJESH KUMAR
                     ------
       For the Appellant        : Mr. Prashant Pallav, Advocate
                                  Mr. Parth Jalan, Advocate
                                  Ms. Shivani Jhaluka, Advocate
       For the State            : Mr. Manish Mishra, GP-V
       For Pvt. Respondent     : Mr. Indrajit Sinha, Advocate
                                : Mr. Arpan Mishra, Advocate
                               ------

C.A.V. on 01.05.2025                    Pronounced on 12.06.2025

Per Sujit Narayan Prasad, J.

Prayer

1. The instant intra-court appeal preferred under Clause-10

of Letters Patent, is directed against the order dated 09.02.2021

passed by the learned Single Judge of this Court in W.P.(S)

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No.4188 of 2013, whereby and whereunder, the writ petition

has been allowed with a direction upon the

respondent/University (appellant herein) to send appropriate

requisition to the State of Jharkhand for grant of approval for

release of salary in the revised pay-scale to the writ

petitioner(respondent herein) and consequently, the State of

Jharkhand was to approve the revised pay-scale to the

petitioner and provide appropriate fund to Respondent-Ranchi

University for payment of arrear of salary to the petitioner in

the revised pay-scale including payment of post retiral benefit

to the petitioner as per revised U.G.C. pay-scale.

Factual Matrix

2. The brief facts of the case, as per the pleading made in the

writ petition, required to be enumerated, which read as under:

2(i) The writ petitioner was duly appointed as lecturer in the

department of English in the prescribed scale of Rs.700-1600/-

with admissible allowances vide letter no.SC / Appointment /

154(E) /80 dated 10.08.1980 and accordingly, she joined on

11.08.1980 on the said sanctioned post. Subsequently, in the

same year Sindri College was converted into a constituent unit

of Ranchi University, Ranchi and with this petitioner's service

merged in the University service. Thereafter, the petitioner was

transferred from Sindri College, Sindri to Marwari College,

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Ranchi vide memo No.B/3362-75 dated 06.07.1985.

2(ii). Thereafter, petitioner joined Marwari College, Ranchi as a

lecturer, Department of English and the petitioner continuously

worked without any break till her retirement on 31.08.2017. In

the meantime, petitioner has completed two orientation courses

in 1994 and 1998 and got Ph.D degree from Ranchi University

in 1999. Thereafter, she again attended one refresher course in

2002. She also served as Hostel Superintendent, P.G. Girls

Hostel from 02.01.1991 to 1995.

2(iii). It is the case of the petitioner that a Statute, being

Statute of 1986, known as 'Statute for regularization of services

of temporary Lecturers who were appointed on or before

28.02.1982, was approved by the Hon'ble Chancellor of Ranchi

University on 29.01.1986 and, thereafter, Screening Committee

was constituted by Ranchi University for regularization of

teachers for the newly taken-over Constituent Colleges.

However, unfortunately, the candidature of the Petitioner was

not placed before the Screening Committee with relevant

documents and details. However, the services of other similarly

situated persons with that of the petitioner were regularized

and absorbed pursuant to the Statute of 1986.

2(iv). It is the further case of the writ petitioner that she was

regularly performing her duties of Lecturer at Marwari College,

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which has become a Constituent College of Ranchi University,

and was regularly paid her salary in the pay scale, which was

4th revised U.G.C. pay-scale, of Rs. 2000-4000/-. Thereafter

vide memo No.B/6717 dated 21.04.2001, and Vide memo No.

B/310/09 dated 18.04.2009 and vide memo No. B/323/2010

dated 04.05.2010, respondent University requested the

authority like Secretary HRD, Department, Govt. of Jharkhand

and OSD (J) Governor Secretariat, Jharkhand for nomination of

Government Member in the Screening Committee and

expediting the matter of absorption / regularization of the

services of left out temporary teachers due to procedural delay.

During that period, the Chancellor Secretariat Vide D.O Letter

No. 495/PSG dated 17.04.2001 and No.G.S/1576/12 dated

02.05.2012 also took certain steps for nomination of Govt.

Member to the Screening Committee and convening of the

meeting of the said Committee for absorption /regularization of

the temporary teachers.

3. The writ petitioner made representation for

absorption/regularization of her service vide letter dated

10.06.2013 wherein it has been stated that the case of the

petitioner is squarely covered by the statutory provisions and as

such her service may be considered.

4. However, the concerned respondent has not given any

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heed to cause of the writ petitioner, then the writ petitioner for

redressal of her grievances had preferred a writ petition being

W.P.(S) 4188 0f 2013 before the learned writ Court.

5. Before the learned writ Court, the counter affidavit has not

been filed by the University and the learned counsel for the

university has submitted that Ranchi University has not taken

any reverse stand and as such did not file any counter affidavit.

6. The said writ petition being W.P.(S) No.4188 of 2013 which

had been filed by respondent-writ petitioner seeking therein the

direction of absorption/regularization of her service w.e.f.

11.08.1980 on the basis of statute dated 29.01.1986. The said

writ petition was disposed of vide order dated 09.02.2021 with

the following directions: -

"10. In view of the cumulative facts and circumstances mentioned hereinabove, the respondent University; who is alone competent to confirm/regularize the services of the employees of the newly converted constituent colleges and it has already decided to confirm / regularize the services of this petitioner, inasmuch as, twice it has requested the authority of the State including OSD (J) Governor Secretariat, Jharkhand for nomination of Government Member in the Screening Committee and expediting the matter of absorption / regularization of the services of left out temporary teachers due to procedural delay, shall pass a formal order of regularization of this writ petitioner

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and accordingly the benefit of revision of pay-scale in 5th, 6th and 7th U.G.C. revised pay-scale be extended to the Petitioner. If the Petitioner is found entitled for payment of arrear salary with effect from 11.08.1980 till the date of retirement as per the revised pay-scale, which has been implemented from time to time in the State of Jharkhand, the same shall also be extended in her favour.

             Since         the         Petitioner         had        already
      superannuated             from    service      with       effect   from

31.08.2017, the petitioner is further entitled for computation of her post retiral benefits on the basis of the revised pay-scale which would be applicable on the date of her retirement and, accordingly, all post retiral benefits be disbursed to the Petitioner after revising her pay-scale.

11. The Respondent-Ranchi University is directed to send appropriate requisition to the State of Jharkhand for grant of approval for release of salary in the revised payscale to the Petitioner and, consequently, the State of Jharkhand is directed to approve the revised pay-scale to the Petitioner and provide appropriate fund to Respondent-Ranchi University for payment of arrear of salary to the Petitioner in the revised pay-scale including payment of post retiral benefit to the Petitioner as per revised U.G.C. pay-scale."

7. Against the aforesaid order dated 09.02.2021 the present

appeal has been preferred by the Appellant University.

Argument of the learned counsel for the appellant-

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University:

8. The learned counsel for the appellant has assailed the

order dated 09.02.2021 which is the subject matter of the

present appeal on the basis of the following grounds: -

(i) The appointment of the writ petitioner, respondent is

not in consonance with the statute as contained in letter

no.BSU-25/85-283-GS(1)dated 29.01.1986, particularly, the

condition stipulated as under condition no.(1)(d), wherein, it

has been stipulated that "the appointment had been made on

the basis of advertisement of the post in the Indian Nation,

Searchlight, Aryavarta, Pradeep or in any other daily newspaper

of Bihar State or in a leading newspaper of India and from the

panel recommended by a Selection Committee constituted by

the University/College for the purposes, assisted by an expert

or experts".

(ii) Further, from Annexure -3, i.e., appointment letter of

the writ petitioner/respondent, it is evident that she has been

interviewed by selection Borad of Sindri College on 06.04.1980,

prior to the date of advertisement which was duly advertised in

the "Indian Nation" newspaper dated 02.08.1980 and

subsequently, appointment for a period not exceeding six

months has been offered to her.

(iii) It has been contended that the selection of the

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respondent since has been made on 06.04.1980 and it has

been sworn by her that the appointment is based upon the

advertisement dated 02.08.1980, hence, selection/interview

since has been admitted to be made on 06.04.1980 which will

be not on the basis of the advertisement which itself has been

admitted to be notified on 02.08.1980.

The ground, therefore, has been raised that the

requirement of floating of advertisement is under the statute

dated 29.01.1986 as contained in condition no.(1)(d) thereof

and considering the admitted case of the appellant of the date

of selection, i.e., on 06.04.1980, hence, the said selection will

be in absence of advertisement and as such, contrary to the

statute dated 29.01.1986 and hence, the appointment so made

dehors the rule, i.e., the statute dated 29.01.1986.

It has been submitted that the aforesaid aspect of the

matter has not been brought on record due to the reason that

no counter affidavit was filed before the learned writ court.

(iv) The ground has also been taken that the appointment

since dehors the rule and as such, service of the respondent is

not fit to be regularized.

(v) It has been submitted that upto the 4th Pay Revision

Commission recommendation, the benefit of revision was given

from the date and when the 5th Pay Revision Commission

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report was implemented, the condition has been made

mandatory that the benefit of revision is only to be given to

those whose appointment is in consonance with the statute and

as such, the benefit of revision of the pay scale has not been

released in favour of the petitioner after implementation of 5 th

Pay Revision Commission.

(vi) The ground has also been taken that it is a case of

manipulation in the record which would be evident from the

communication dated 17.04.2012 showing the date of

appointment on 10.08.1980 making the appointment to be

presented after the date of advertisement, while the respondent

was interviewed prior to issuance of advertisement, i.e., on

06.04.1980.

Learned counsel has submitted that the learned Single

Judge has not taken into consideration these aspects of the

matter since no counter affidavit was filed before the learned

writ Court.

(vii) The further ground has been taken that the learned

Single Judge has considered the applicability of the judgment

passed by the Hon'ble Apex Court in the case of State of Bihar

& Ors. Vrs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors.,

reported in (2005) 9 SCC 129, while the said case is on the

issue of absorption of the teaching and non-teaching staff in

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consonance of the decision of the State of Bihar of taking over

the Colleges. Herein, it is the case of appointment on the basis

of statute dated 29.01.1986 which was not the subject matter

of the judgment rendered by the Hon'ble Apex Court in the case

of State of Bihar & Ors. Vrs. Bihar Rajya M.S.E.S.K.K.

Mahasangh & Ors., (supra).

(viii) Otherwise also, the grievance has been raised

belatedly although the cause of action accrued the day when

the 5th Pay Revision Committee was adopted but the writ

petition has been filed in the year, 2013 and as such, on that

ground also, the case of the writ petitioner/respondent is not fit

to be entertained.

9. Learned counsel, based upon the aforesaid grounds, has

submitted that the impugned judgment passed by the learned

Single Judge therefore, suffers from an error and as such, not

sustainable in the eye of law.

Argument of the learned counsel for the Pvt. Respondent

10. Per contra, Mr. Indrajit Sinha, learned counsel for the writ

petitioner-respondent has conceded that the judgment passed

by the Hon'ble Apex Court in the case of State of Bihar & Ors.

Vrs. Bihar Rajya M.S.E.S.K.K. Mahasangh & Ors., (supra)

in the facts and circumstances of the present case is not

applicable.

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11. It has also been conceded that the appointment during the

relevant time when the respondent has claimed to be

appointed, was to be made on the basis of statute dated

29.01.1986.

12. Learned counsel has further admitted that the date of

advertisement is dated 02.08.1980, while, the interview is dated

06.04.1980. Such concession is based upon the admitted fact

as available on record.

13. Learned counsel, therefore, has submitted that the

respondent-writ petitioner admittedly has been tried to

continue in service for last 37 years and as such, taking into

consideration the long service length, the benefit which has

been sought for by filing the writ petition is fit to be allowed

without considering the issue of illegality.

Argument of the learned counsel for the respondent-State

14. Mr. Manish Mishra, learned GP-V appearing for the

respondent-State has accepted the argument advanced on

behalf of the University.

15. He, in addition thereto, has submitted that formal

decision is to be taken by the University. However, the formal

decision was taken by the Chancellor but the State has not

found the said decision to be passed based upon the record and

as such, the same has not been approved.

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Analysis

16. We have heard the learned counsel for the parties and

gone through the pleading made in the writ petition as also the

finding recorded by the learned Single Judge in the impugned

order along with the affidavits filed on behalf of respective

parties.

17. It needs to refer herein that earlier the present Letters

Patent Appeal has been dismissed by the Coordinate Bench of

this Court vide order dated 10.08.2023 on the ground of

limitation as the appeal is barred by delay of 297 days.

18. Being aggrieved with the said order, the appellant-

University has travelled to the Hon'ble Apex Court by filing Civil

Appeal being C.A.No(S).012996/2024 @ SLP(C)

No.22398/2023. The Hon'ble Apex Court vide order dated

22.11.2024 has allowed the appeal, by setting aside the order

dated 10.08.2023 passed by the High Court and has remitted

the matter back to the High Court. For ready reference, the

relevant part of the order dated 22.11.2024 is being quoted

hereinbelow: -

"1. Leave granted.

2. This appeal challenges the order dated 8/10.08.2023 vide which the appeal of the present appellant was dismissed on the ground of delay.

3. Heard Shri Ajit Kumar Sinha, learned senior counsel on behalf of the appellant and Ms. Anusuya Sadhu Sinha, learned counsel for the respondent(s).

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4. We find that after the order was passed by the learned Single Judge, the review application was filed on 03.12.2022. Though, in the said review there was delay the same was condoned and the petition was heard on merits. Ultimately, the review application was dismissed on merits on 20.01.2023 and the LPA was filed on 25.03.2023. It cannot be therefore said that there was inordinate delay in filing the appeal.

5. We, therefore, set aside the impugned order and remit the matter back to the High Court. Delay in filing the appeal before the High Court is condoned and the appeal be heard by the High Court on merits.

6. The appeal is accordingly allowed.

7. Pending application(s), if any, shall stand disposed of."

19. Thereafter, the matter was placed before Hon'ble the Chief

Justice and accordingly, the instant appeal was assigned to this

Court (D.B.-II) to hear the matter afresh in the light of order

dated 22.11.2024 passed by the Hon'ble Supreme Court in Civil

Appeal being C.A.No(S).012996/2024 @ SLP(C)

No.22398/2023.

20. This Court, before proceeding to examine the illegality and

propriety of the impugned judgment, needs to refer herein the

certain admitted facts, i.e., date of advertisement is 02.08.1980,

and based upon that appointment is made on 10.08.1980 but

date of selection of the respondent/writ petitioner is

06.04.1980.

21. The benefit upto to the recommendation of the 4th Pay

Revision Committee was disbursed in favour of the respondent

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but the benefit of revision on or after 5 th Pay Revision

Committee had not been released that led the respondent to

approach the writ court by filing writ petition being W.P.(S)

No.4188 of 2013.

22. The direction has been passed by the learned Single Judge

on the premise that the State has made request for constitution

of Screening Committee and the same intention of the

University had been construed to be the decision of the

University on regularization of respondent and under the

aforesaid premise, the direction was passed upon the University

to pass formal order of regularization and in consequence

thereof, the release of benefit of revision of pay-scale on or after

recommendation of 5th Pay Revision Committee, the same is the

subject matter of the present appeal.

23. This Court, in view of the admitted facts and on

consideration of the rival submission made on behalf of the

parties is referring herein that whatever ground has been taken

by the University showing the appointment of the respondent to

be illegal being contrary to the statute dated 29.01.1986 which

has been admitted by the respondent at Bar as referred

hereinabove while referring the argument advanced on behalf of

the respondent concerned, the writ petitioner.

24. Therefore, the date of advertisement dated 02.08.1980, the

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date of selection/interviewed dated 06.04.1980 have been

admitted one and in view of the aforesaid admission, the date of

selection of the respondent is admittedly prior to the date of

issuance of advertisement. However, the respondent had tried

to present her case showing her to be appointed on 11.08.1980

in consonance with the advertisement dated 02.08.1980.

25. The same has also been admitted based upon the letter of

appointment by the learned counsel for the writ petitioner,

respondent.

26. Although, the learned Single Judge has gone into the

wrong premise without taking into consideration the

implication of resolution dated 29.01.1986 as per condition

no.(1)(d) of the statute as referred hereinabove.

27. Further, herein the applicability of the judgment rendered

by the Hon'ble Apex Court in the case of Bihar Rajya

M.S.E.S.K.K. Mahasangh & Ors (supra), has been admitted

to be not applicable and further, the date of selection was prior

to the date of advertisement.

28. This Court, in the light of the aforesaid admission is of the

view that the judgment which has been passed by the learned

Single Judge, cannot be said to be passed on proper

consideration of the factual aspect.

29. Learned counsel for the writ petitioner/respondent in the

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aforesaid admitted fact however, has argued that the

respondent/writ petitioner since has been allowed to continue

in service for the last 37 years and as such, the benefit which

has been sought for in the prayer which has been allowed by

the learned single judge may not be interfered with.

30. However, argument has been advanced on behalf of the

University, the appellant herein, that even the said relief cannot

be granted for two fold reasons: -

(i) That was not the case made out before the learned

writ court and in the Letters Patent Appellate Court,

new case is being made out which is not permissible.

(ii) The appointment once has been admitted to be illegal

being in the teeth of statute dated 29.01.1986, then,

the illegality which has been committed as on the

date of appointment, cannot be legalized and it is not

merely a question of appointment in absence of

advertisement, rather, the question of issuance of

advertisement has been made based on appointment

in view of condition no.(i) of statute dated 29.01.1986

which admittedly has not been followed, since, the

respondent has been appointed prior to issuance of

advertisement, the appointment of the respondent

cannot be considered to be irregular appointment,

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rather, it is illegal.

31. We have appreciated the aforesaid argument.

32. This Court, in order to consider the same first needs to

refer herein the difference between illegal appointment and

irregular appointment.

33. The Hon'ble Apex Court in the case of Municipal Corpn.,

Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373 while

referring the ratio as laid down by the constitution Bench of the

Hon'ble Apex Court in the case of State of Karnataka & Ors.

v. Umadevi & Ors. (3), (2006) 4 SCC 1 has distinguished

between the Illegal and Irregular appointments and has

observed as under:

"10. By way of clarification, however, in para 53 of its

judgment [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] this Court

clarified: (SCC p. 42)

53. One aspect needs to be clarified. There may be cases

where irregular appointments (not illegal appointments) as

explained in S.V. Narayanappa [State of Mysore v. S.V.

Narayanappa, AIR 1967 SC 1071 : (1967) 1 SCR 128] , R.N.

Nanjundappa [R.N. Nanjundappa v. T. Thimmiah, (1972) 1

SCC 409] and B.N. Nagarajan [B.N. Nagarajan v. State of

Karnataka, (1979) 4 SCC 507 : 1980 SCC (L&S) 4] and

referred to in para 15 above, of duly qualified persons in duly

sanctioned vacant posts might have been made and the

employees have continued to work for ten years or more but

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without the intervention of orders of the courts or of tribunals.

The question of regularisation of the services of such

employees may have to be considered on merits in the light of

the principles settled by this Court in the cases above referred

to and in the light of this judgment. In that context, the Union

of India, the State Governments and their instrumentalities

should take steps to regularise as a one-time measure, the

services of such irregularly appointed, who have worked for

ten years or more in duly sanctioned posts but not under

cover of orders of the courts or of tribunals and should further

ensure that regular recruitments are undertaken to fill those

vacant sanctioned posts that require to be filled up, in cases

where temporary employees or daily wagers are being now

employed. The process must be set in motion within six

months from this date. We also clarify that regularisation, if

any already made, but not sub judice, need not be reopened

based on this judgment, but there should be no further

bypassing of the constitutional requirement and regularising

or making permanent, those not duly appointed as per the

constitutional scheme."

11. The question which, thus, arises for consideration, would be: Is there any distinction between "irregular appointment"

and "illegal appointment"? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the

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constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to."

34. In the aforesaid case the Hon'ble Apex Court has further

observed that if the appointment itself is in infraction of the

rules or if it is in violation of the provisions of the Constitution

illegality cannot be regularised. Ratification or regularisation is

possible of an act which is within the power and province of the

authority but there has been some non-compliance with

procedure or manner which does not go to the root of the

appointment. Regularisation cannot be said to be a mode of

recruitment. For ready reference, the relevant paragraph is

being quoted as under:

"12. In R.N. Nanjundappa v. T. Thimmiah [R.N. Nanjundappa v. T. Thimmiah, (1972) 1 SCC 409] this Court held: (SCC pp. 416-17, para 26) "26. The contention on behalf of the State that a rule under Article 309 for regularisation of the appointment of a person would be a form of recruitment read with reference to power under Article 162 is unsound and unacceptable. The executive has the power to appoint. That power may have its source in Article 162. In the present case the rule which regularised the appointment of the respondent with effect from 15-2-1958, notwithstanding any rules cannot be said to be in exercise of power under Article 162. First, Article 162 does not speak of rules whereas Article 309 speaks of rules. Therefore, the present case touches the power of the State to make rules under Article 309 of the nature impeached here. Secondly, when the Government

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acted under Article 309 the Government cannot be said to have acted also under Article 162 in the same breath. The two articles operate in different areas. Regularisation cannot be said to be a form of appointment. Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

(emphasis supplied)

13. Yet again, in B.N. Nagarajan v. State of Karnataka [B.N. Nagarajan v. State of Karnataka, (1979) 4 SCC 507 : 1980 SCC (L&S) 4] this Court followed the said dicta stating: (SCC pp. 514-15, para 25) "25. Apart from repelling the contention that regularisation connotes permanence, these observations furnish the second reason for rejection of the argument advanced on behalf of the promotees and that reason is that when rules framed under Article 309 of the Constitution of India are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 thereof in contravention of the rules. The regularisation order was made long after the Probation Rules, the Seniority Rules and the Recruitment Rules were

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promulgated and could not therefore direct something which would do violence to any of the provisions thereof. Regularisation in the present case, if it meant permanence operative from 1-11-1956, would have the effect of giving seniority to promotees over the direct recruits who, in the absence of such regularisation, would rank senior to the former because of the Seniority Rules read with the Probation Rules and may in consequence also confer on the promotees a right of priority in the matter of sharing the quota under the Recruitment Rules. In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Article 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive fiat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Article 309 of the Constitution."

35. It needs to refer herein that the Constitution Bench of the

Hon'ble Apex Court in the case of State of Karnataka vs.

Umadevi (3) (supra) has been held that irregularity which is

curable will come under the fold of irregular appointment,

while, irregular which is not curable will come under the fold of

illegal appointment.

36. The aforesaid proposition is to be taken into consideration

on the basis of availability of the facts of the present case.

37. It is the admitted fact that the appointment of the

respondent has been said to be made on the basis of the statute

dated 29.01.1986, wherein, the specific condition has been put

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that such appointment can only be made on the basis of

advertisement to be floated in different newspaper.

38. The statute dated 29.01.1986 is binding and if insertion

has been made in the said statute that appointment is to be

made on the basis of advertisement then issuance of

advertisement is the mandatory condition in terms of statutory

command and if it has not been followed, then it cannot be

simply be said that if the appointment has been made without

issuance of advertisement, the same will come under the

irregular appointment, rather, the appointment if made in

absence of advertisement, then, it will be said to be in the teeth

of provision as contained in the condition no.(1)(d) of the

statute, for ready reference, the condition no.(1)(d) of statute

dated 29.01.1986 is being quoted as under:-

"(d) that, the appointment had been made on the basis of advertisement of the post in the Indian Nation, Searchlight, Aryavarta, Pradeep or in any other daily newspaper of Bihar State or in a leading newspaper of India and from the panel recommended by a Selection Committee constituted by the University/College for the purposes, assisted by an expert or experts."

39. The appointment admittedly has been made not in terms

of advertisement as has been admitted on behalf of the

respondent which is in teeth of condition no.(1)(d) of the statute

dated 29.01.1986, hence, this Court taking aid from the ratio

laid down by the Hon'ble Apex Court in the case of State of

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Karnataka vs. Uma Devi (supra) is of the view that the

appointment so made cannot be said to be regularized, rather,

it is illegal.

40. The another, aspect which is available on record that the

selection/interview of respondent has been made on

06.04.1980 but in order to show here the appointment said to

be in pursuant to the advertisement which was floated on

02.08.1980, the selection of the respondent presented to be

made on 10.08.1980 in pursuance of the advertisement dated

02.08.1980.

41. But, from the record it transpires that the Selection Board

of Sindri College has convened its meeting on 06.04.1980, i.e.,

prior to the date of advertisement as would be evident from the

annexure-3 dated 10.08.1980, which is being referred as

under:-

"ANNEXURE-3

सिन्दरी महासिद्यालय, सिन्दरी

पत्रIक SC/Appt./184(E)/80

सिन्दरी (धनबाद) सदनाक 10.8.1980 To Smt. Gouri Ghosh

KD, 86, Sindri

Sub: Appointment as Lecturer in English

Dear Madam,

With reference to your application and the subsequent interview

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held by the Selection Board of Sindri College, Sindri, on 6.4.80 and their recommendation thereon, it has been decided to offer you a post of Lecturer in English on a Salary of Rs 700/- other allowances as admissible to you This offer of appointment is subject to the acceptance of the terms and conditions as laid down herewith

1. This appointment is for a period not exceeding six months at a stretch. This period may however be extended by Governing Body for a further period of six months or sum satisfactory performance of your work.

2. During this period of your service with us, your service may be terminated try giving 24 (Twenty four) hours notice even without assigning any reason.

3. You may not be paid your salary for longer vacation/ holidays vit, Durga Puja/ Summer Vacation etc.

4. During your services with us, you shall obey the instructions (administrative, academic and extracurricular activities issued to you by the Principal of the College from time to time

5. You shall be required to show the anginal certificates and submit the attested copies of such certificates at the time of joining the post.

6. In case you are employed under Central Govt/State Govt or any other organisations, you will be required to submit at the time of joining you post here a release certificate from your employee.

7. You will be eligible to join the provident fund scheme after your services have been approved & confirmed by us

8. Your services will be terminated if your work is found not satisfactory during this period.

                                                              Yours     faithfully
                                                              for and on behalf
                                                              of Sindri College
                                                               s/d 10.08.80
                                                               (DK Sharma)
                                                                 Secretary

I accept the above terms and Conditions. Signature in full with date.

Copy to:

1. Principal, Sindri College.

2. Professor, Sindri College."

42. It also needs to refer herein the communication dated

17.04.2012(Annexure 32 series) issued under the signature of

the respondent addressed to OSD (J) Governor's Secretariat,

Raj Bhawan, Jharkhand is also being referred as under:-

To, The O.S.D.(J) Governor's Secretariat, Raj Bhawan, Ranchi.

Subject: Reminder of the regularization of the service of teachers

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under the statutes.

Sir, With due respect I say that my service in Ranchi University has not been regularized till date in spite of repeated requests and reminders.

1. I was appointed as lecturer on 10.08.1980 in Sindri College, by the Governing Body. The post was duly advertised in the Indian Nation dated 2.8.1980,

2. That my appointment was made against a sanctioned post in the prescribed UGC pay scale

3. That I was transferred from Sindri College, Sindri to Marwari College, Ranchi on 6th July 1985.

4. That I applied for regularization of my services in the University under the provision of the statutes approved by the Chancellor vide letter No. BSU/25/85-283-GS(1) in 1995, 1998, 2005, 2010, 2014-etc

5. I did my Ph.D. from Ranchi University in March 1999 (Notification No. Ex/1037-47, letter attached).

6 I did two Refresher Course (1994, 1998) letter attached.

7 I did one Orientation Programme 2002 (letter attached).

8. 1 served as a hostel Superintendent of P.G. Girls' Hostel from 2nd Jan 1991 to 1995 and again from Jan 2011 till date

I would like to mention that I fullfill all criteria mentioned for regularization of services of purely temporary teachers appointed on or before 28th February, 1982

I have completed 32 years of my service in this university. I have put several reminders and hope you will be kind enough to consider my case this time.

It is a trauma to work under this condition. Kindly suggest me whether this simple thing needs a legal procedure or I will get the justice.

Thanking you.

Yours faithfully

Dr.Gouri Jilani Deptt of English Marwari College, Ranchi"

43. Therefore, this Court is of the view that it is a case of

doing misrepresentation by the respondent which would be

evident from the communication dated 17.04.2012 showing the

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date of appointment on 10.08.1980 making the appointment to

be presented after the date of advertisement, while the

respondent was interviewed prior to issuance of advertisement,

i.e., on 06.04.1980.

44. It needs to refer herein that misrepresentation/fraud

vitiates the solemnity of the act. It is settled proposition of law

that fraud is anathema to all equitable principles and any affair

tainted with fraud cannot be perpetuated or saved by the

application of any equitable doctrine. Further, an act of

deliberate deception with a design to secure something, which

is otherwise not due, tantamount to fraud, reference in this

regard may be made to the judgment rendered by the Hon'ble

Apex Court in the case of Regional Manager, Central Bank of

India Vrs. Madhulika Guruprasad Dahir & Ors., reported in

(2008) 13 SCC 170, wherein, it has been held as under:-

"15. An act of deliberate deception with a design to secure something, which is otherwise not due, tantamounts to fraud. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. (See R. Vishwanatha Pillai v. State of Kerala [(2004) 2 SCC 105 : 2004 SCC (L&S) 350] , Bank of India [(2005) 7 SCC 690 : 2005 SCC (L&S) 1011] , BHEL [(2007) 5 SCC 336 : (2007) 2 SCC (L&S) 152] , Derry v. Peek [(1889) 14 AC 337 : (1886-90) All ER Rep 1 (HL)] , Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [(2003) 8 SCC 311] and Bhaurao Dagdu

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Paralkar v. State of Maharashtra [(2005) 7 SCC 605].)

16. In Ram Chandra Singh v. Savitri Devi [(2003) 8 SCC 319] this Court had observed that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine."

45. Now this Court, is to consider as to whether merely

because writ petitioner has rendered 37 years of service on the

false premise of manipulation as also the appointment was in

the teeth of statute dated 29.01.1986, can the service of the

respondent be regularized as has been directed to be done by

the learned Single Judge.

46. Since, the argument has been advanced on behalf of the

respondent to consider the case in the light of long length of

service and as such, the said aspect of the matter is being

considered.

47. It needs to refer herein that the constitution Bench of the

Hon'ble Apex Court in the case of State of Karnataka v.

Umadevi (supra) has observed that the High Courts acting

under Article 226 of the Constitution, should not ordinarily

issue directions for absorption, regularisation, or permanent

continuance unless the recruitment itself was made regularly

and in terms of the constitutional scheme.

48. The Hon'ble Apex Court in the case of Secretary to

Government School Education Deptt., Chennai v. R.

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Govindaswamy, (2014) 4 SCC 769 while referring the ratio

rendered by the Hon'ble Apex Court in the case of State of

Rajasthan & Ors. v. Daya Lal & Ors., (2011) 2 SCC 429 has

categorically held that the High Courts, in exercising power

under Article 226 of the Constitution will not issue directions

for regularisation, absorption or permanent continuance,

unless the employees claiming regularisation had been

appointed in pursuance of a regular recruitment in accordance

with relevant rules, for ready reference the relevant paragraph

is being quoted as under:

"8. This Court in State of Rajasthan v. Daya Lal [State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 : (2011) 1 SCC (L&S) 340 : AIR 2011 SC 1193] has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under : (SCC p. 435, para 12) "(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme.

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While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised."

49. But, the aforesaid proposition is also not fit to be

considered by passing a positive direction in favour of the

respondent due to the following reasons: -

(i) This Court is exercising the power conferred under

Clause-10 of Letters Patent, however, exercise the

jurisdiction conferred under Article 226 of the

Constitution of India.

(ii) The Letters Patent Appellate Court is furtherance of

the proceeding of the writ court but even accepting

the Letters Patent Appellate Court to be furtherance

of the proceeding of the writ court, then also, the

parties cannot be allowed to make out a new case

before a higher forum by way of Letters Patent

Appellate Court.

(iii) The fact about making of new case is admitted one

on the basis of submission made on behalf of the

respondent/writ petitioner.

50. Further, we are conscious that even the relief can be

moulded and moulding of relief is also said to be available in the

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pleading to that effect so that party may have an opportunity to

rebut. Similarly, the Hon'ble Apex Court in the case of State of

Rajasthan Vrs. Hindustan Sugar Mills Ltd. & Ors., reported in

AIR 1988 SC 1621, wherein, it has been laid down at paragraph-

4 which reads as under:

"4. ... ...The High Court was exercising high prerogative jurisdiction under Article 226 and could have moulded the relief in a just and fair manner as required by the demands of the situation. ... ..."

51. Further, the law is equally settled that the High Court

while exercising power under Article 226 of the Constitution of

India is to strictly go by the pleading and there cannot be any

deviation by moulding the prayer by giving finding as has been

held by Hon'ble Apex Court in the case of State of Madhya

Pradesh and Another vs. Kedia Great Galeon Limited and

Another, reported in (2017) 13 SCC 836, wherein at paragraph

38, it has been held as under:-

"38. ... ... ... We are, thus, of the considered opinion that the something which the writ petitioner never intended or prayed for cannot be looked into in this appeal."

52. This Court, in view of the settled position of law is not in

agreement with such submission made on behalf of the

respondent to grant relief on the basis of new ground having been

taken in the Letters Patent Appellate Court.

53. Here, it has been insisted by the learned counsel for the

respondent/writ petitioner to pass absolutely a new direction on

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the ground of 37 years of service said to be rendered by the

respondent, which according to the considered view of this Court,

is not permissible.

54. The other reason for not granting such relief is that the

moment appointment dehors the statute dated 29.01.1986 being

not in consonance with the condition of statute no.(1)(d) of the

statute dated 29.01.1986, then, the regularizing the service of the

writ petitioner, respondent will amount to legalizing the illegality

committed in order to perpetuate it which is contrary to the

settled position of law that illegality cannot be allowed to

perpetuated, reference in this regard may be made to the relevant

paragraph of the judgment rendered by the Hon'ble Apex Court in

the case of State of U.P. & Ors. vs. Rekha Rani, (2011) 11 SCC

441, which reads as under:

"12. It has been held in a recent decision of this Court in State of Rajasthan v. Daya Lal [(2011) 2 SCC 429 :

(2011) 1 SCC (L&S) 340] following the Constitution Bench decision of this Court in State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1 : 2006 SCC (L&S) 753] that the High Court in exercise of its power under Article 226 cannot regularise an employee. Merely because some others had been regularised does not give any right to the respondent. An illegality cannot be perpetuated."

55. The Hon'ble Apex Court in the case of Union of India &

Ors. vs. Arulmozhi Iniarasu & Ors., (2011) 7 SCC 397 has

observed that only because an illegality has been committed, the

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same cannot be directed to be perpetuated. It is trite law that

there cannot be equality in illegality. The relevant paragraph is

being quoted as under:

"26. Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. (Ref. Sushanta Tagore v. Union of India [(2005) 3 SCC 16] , U.P. State Sugar Corpn. Ltd. v. Sant Raj Singh [(2006) 9 SCC 82 :

2006 SCC (L&S) 1610], State v. Sashi Balasubramanian [(2006) 13 SCC 252 : (2007) 3 SCC (Cri) 337] and State of Orissa v. Prasana Kumar Sahoo [(2007) 15 SCC 129 : (2010) 2 SCC (L&S) 765."

56. Further, it is settled position of law that

regularisation as is well known is not a mode of recruitment.

A policy decision to absorb a person who has been appointed

without following the recruitment rules, would not confer any

legal right on him. A Constitution Bench of the Hon'ble Apex

Court in State of Karnataka v. Umadevi (3) categorically held

that any appointment made in violation of the constitutional

provisions would be a nullity.

57. The Hon'ble Apex Court in the case of State of

Orissa & Ors. vs. Prasana Kumar Sahoo, (2007) 15 SCC

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129 has observed that it may be that some other persons

similarly situated have been appointed. But Article 14 as is

well known contains a positive concept. A writ of mandamus

can be issued by the High Court only when there exists a

legal right in the writ petitioner and corresponding legal

obligation in the State. Only because an illegality has been

committed, the same cannot be directed to be perpetuated by

a court of law. Relevant paragraph of the aforesaid judgment

is being quoted as under:

"20. It may be that some other persons similarly situated have been appointed. But Article 14 as is well known contains a positive concept. A writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation in the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated by a court of law.

21. It is also well settled that there cannot be equality in illegality. See Sushanta Tagore v. Union of India [(2005) 3 SCC 16] , State v. Sashi Balasubramanian [(2006) 13 SCC 252 : (2007) 3 SCC (Cri) 337 : (2006) 10 Scale 541] and U.P. State Sugar Corpn. Ltd. v. Sant Raj Singh [(2006) 9 SCC 82 : 2006 SCC (L&S) 1610 : (2006) 6 Scale 205]."

58. It is also settled position of law that illegality if

committed on inception, cannot be regularized due to

subsequent development even on expiry of the time, reference

in this regard may be made to the judgment rendered by the

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Hon'ble Apex Court in the case of State of Orissa & Ors. vs.

Mamata Mohanty, (2011) 3 SCC 436. For ready reference,

the relevant paragraph is being quoted, as under:

"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v. State of Assam [(1998) 3 SCC 381 : 1998 SCC (L&S) 872 : AIR 1998 SC 1289] , Mangal Prasad Tamoli v. Narvadeshwar Mishra [(2005) 3 SCC 422 : AIR 2005 SC 1964] and Ritesh Tewari v. State of U.P. [(2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315 : AIR 2010 SC 3823])"

59. It needs to refer herein that the Hon'ble Apex Court

in the case of Harminder Kaur v. Union of India, (2009) 13

SCC 90 has observed that long service by itself may not be a

ground for directing regularization. The relevant paragraph of

the aforesaid judgment is being quoted, as under:

"10. Rule 6 of the Rules empowers the Administrator to make relaxation of the applicability of the Rules only in the event if he is of the opinion that it was necessary or expedient so to do, wherefor not only an appropriate order was required to be issued but also reasons were to be recorded in writing therefor. Relaxation of the Rules could be made only in respect of any class or category of persons and not with regard to the mode of recruitment. The offers of appointment issued in favour of the appellants clearly go to show that the Rules had been relaxed only for the purpose mentioned therein. We, however, have not been informed as to whether the requisite prior permission from the Department had been

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obtained by the Heads of the Schools upon assigning detailed reasons/justification therefor as stated in Para 1 of the order dated 27-11-1997. Be that as it may, it is now well known that long service by itself may not be a ground for directing regularisation. Regularisation as is well known is not a mode of appointment."

60. Thus, from the aforesaid it is evident that long

service by itself may not be a ground for directing

regularization, as same is not a mode of appointment.

61. It needs to refer herein that, the grievance has been

raised by the appellant that writ petition was filed belatedly

as the cause of action accrued the day when the 5th Pay

Revision Committee was adopted but the writ petition has

been filed in the year, 2013 and as such, on that ground also,

the case of the writ petitioner, respondent is not fit to be

entertained.

62. In the aforesaid context, this Court has conscious

with the settled position of law that undue delay and laches

are relevant factors in exercising equitable jurisdiction under

Article 226 of the Constitution of India. Following the cases of

Government of West Bengal v. Tarun K. Roy &

Ors., (2004) 1 SCC 347 and U.P. Jal Nigam &

Ors. v. Jaswant Singh & Ors., (2006) 11 SCC 464, the

Hon'ble Apex Court in New Delhi Municipal Council v. Pan

Singh, (2007) 9 SCC 278, has observed that after a long

time the writ petition should not have been entertained even

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if the petitioners are similarly situated and discretionary

jurisdiction may not be exercised in favour of those who

approached the Court after a long time. It was held that delay

and laches were relevant factors for exercise of equitable

jurisdiction.

63. Similarly, in Lipton India Ltd. v. Union of India,

J.T. 1994 (6) SC 71 and M.R. Gupta v. Union of India &

Ors., (1995) 5 SCC 628 it was held by the Hon'ble Apex

Court that though there was no period of limitation provided

for filing a petition under Article 226 of Constitution of India,

ordinarily a writ petition should be filed within reasonable

time.

64. In K.V. Rajalakshmiah Setty & Ors. Vs. State of

Mysore & Anr., AIR 1967 SC 993, it was observed by the

Hon'ble Apex Court that representation would not be

adequate explanation to take care of delay. Same view was

reiterated in State of Orissa v. Pyari Mohan

Samantaray, AIR 1976 SC 2617 and State of

Orissa vs. Arun Kumar Patnaik (1976) 3 SCC 579 and the

said view has also been followed in the case of Shiv

Dass v. Union of India & Ors., AIR 2007 SC 1330

and New Delhi Municipal Council (supra).

65. In Northern Indian Glass Industries v. Jaswant

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Singh & Ors., (2003) 1 SCC 335 the Hon'ble Supreme Court

held that the High Court cannot ignore the delay and laches

in approaching the writ Court and there must be satisfactory

explanation by the petitioner as how he could not come to the

Court well in time. A similar view has been reiterated by the

Hon'ble Supreme Court in Printers (Mysore) Ltd. vs. MA

Rasheed, (2004) 4 SCC 460, wherein it has been held that

the High Court should have dismissed the writ petition on the

ground of delay and laches.

66. The Hon'ble Apex Court in the case of A.P. SRTC vs.

N. Satyanarayana & Ors., (2008) 1 SCC 210 has observed

that since in the writ petition without any explanation having

been offered for the delayed approach, writ petition should

have been dismissed on the ground of delay and laches. For

ready reference the relevant paragraph is being quoted as

under:

"10. Even on a bare reading of para 18 of the judgment on which reliance has been placed by the learned Single Judge and the Division Bench, it is clear that the relief was moulded to avoid anomalies and in view of the peculiar situation involved. This Court categorically held that the orders impugned in the appeals were not sustainable because the writ petitions were filed after a long lapse of time. Similar is the position here. The regularisation was done w.e.f. 1-8-1987 and the writ petitions were filed in the year 1999. That being so and since in the writ petition without any explanation having

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been offered for the delayed approach, writ petition should have been dismissed on the ground of delay and laches."

67. Thus, from the aforesaid it may be inferred that

undue delay and laches are relevant factors in exercising

equitable jurisdiction under Article 226 of the Constitution of

India though there was no period of limitation provided for

filing a petition under Article 226 of Constitution of India,

ordinarily a writ petition should be filed within reasonable

time.

68. This Court, in view of the aforesaid, is of the view

that since admittedly, the appointment of the writ

petitioner/respondent was not in consonance with the statute

as contained in letter no.BSU-25/85-283-GS(1) dated

29.01.1986, rather, the petitioner by suppressing the factual