Appointments made in violation of statutory rules and executive instructions cannot be regularised.

JUDGMENT :

P.K. Mohanti, J. - These two writ petitions have been heard together and will be disposed of by this common judgment.

2. Petitioner, a member of the Lower Subordinate Education Service, filed Order J.C. No. 511 of 1978 challenging the promotions of Order P. Nos. 4 to 12 to the Subordinate Education Service on ad hoc basis. During the pendency of that writ petition, the State Government issued the Orissa Subordinate Education Service (Regularisation of Recruitment and Conditions of Service of Irregular Recruits in the Offices Subordinate to the Director of Public Instruction (Schools) (General Branch) Rules, 1978 (hereinafter referred to as the "Regularisation Rules") regularising the ad hoc promotions of Order P. Nos. 4 to 12. Thereafter, the petitioner filed Order J. C. No. 144 of 1979 challenging the said Rules as unconstitutional and void.

3. The Orissa Subordinate Education Service (General Branch) Rules, 1972 (hereinafter referred to as the "Recruitment Rules" came into force on 14-9-1972. Under Rule 3 thereof all the Subordinate Officers under the control of the Director of Public Instructions (Schools), Orissa were brought under one unit and the service in respect of that unit formed one cadre consisting of two grades--Junior and Senior. Rule 4 provides that recruitment in respect of the posts in the Junior grade shall be made by (i) examination in accordance with Rs. 6, and (ii) selection in accordance with Rule 10A. Rule 10 A provides the conditions of eligibility for recruitment by selection, The conditions are: (a) the candidate must have served in the Lower Subordinate Education Service (L.S.F.S. for short) for at least a continuous period of three years and (b) he must have passed a Bachelor's Degree or an equivalent examination of a recognised University and must have successfully undergone a course of training equivalent to Bachelor of Education. According to Rule 10B a Selection Committee constituted under Rule 15 shall select candidates eligible for recruitment by selection.

4. In pursuance of the aforesaid provisions of the Recruitment Rules the authorities issued an advertisement for holding an examination for recruitment to S.E.S. (Junior) and the petitioner being eligible deposited the examination fees, but no examination was held and the fees deposited were refunded. In the meantime, the Director of Public Instructions issued Circular Letter No. 13485 dated 12-4-74 (Annexure A) and Circular Letter No. 40317 dated 10-10-76 (Annexure B) prescribing qualifications and conditions of eligibility for ad hoc promotion. The qualifications and conditions of eligibility prescribed under Annexures A and B were different from those prescribed under the Recruitment Rules. Order P. Nos. 4 to 12 were given ad hoc promotions according to the principles laid down in Annexures A and B.

5. The petitioner's case is that though he possessed the requisite qualifications prescribed by the Recruitment Rules his case for promotion was not considered at the time of promotion of Order P. Nos. 4 to 12. He made a representation on 10-1-77 to Order P. No. 2 as per Annexure 6, but no order on the same was communicated to him. He challenges the ad hoc appointments of Order P. Nos. 4 to 12 as invalid and discriminatory as having been made in violation of the rules and without considering his claim for promotion. He also challenges 'he Regularisation Rules on the ground that the appointments which were made in defiance of the Recruitment Rules and the provisions of the Constitution have been regularised under the said Rules.

6. In the counter filed by the opposite parties it is admitted that after enforcement of Recruitment Rules an advertisement was issued by the Director of Public Instruction (Schools) for holding an examination for recruitment to S.E.S. (Junior). But since the Selection Committee as envisaged under Rule 15of the Recruitment Rules could not be constituted due to administrative reorganization the same did not functi