The distinction between irregular and illegal appointments, the application of Articles 14 and 16 of the Constitution, and the consideration of equity in public employment cases.

JUDGMENT

Ravindra Maithani, J. - Challenge in the instant petition, is an order dated 09.12.2005, passed by the respondent no.2, whereby the appointment of the petitioner at a Class IV post has been cancelled.

2. Facts shorn of unnecessary details briefly stated are that the petitioner was initially appointed for 89 days on 24/31 7-1998 on the post of Peon as a stop gap arrangement. After expiry of this period, his service was dispensed with. Subsequently, again he was appointed on the same post on 25.01.1999; in the subsequent appointment, it was stipulated that though the appointment would be temporary in nature, the petitioner shall continue till regularly selected candidate joins. It is the case of the petitioner that his appointment was subsequently cancelled on 01.11.1999, which was challenged by the petitioner in Writ Petition No.12624 of 2000 (for short, "the first petition") before the Allahabad High Court, in which, on 16.03.2000, an interim order was granted. The petitioner continued at the strength of interim order passed in the first petition. The first petition was subsequently transferred to this Court and decided on 30.08.2005. The Court observed that opportunity of hearing was not afforded to the petitioner, before cancellation of his appointment and accordingly the order cancelling his appointment dated 01.11.1999 was quashed. It so happened that thereafter, two notices dated 17.11.2005 and 05.12.2005 were given to the petitioner to reveal the procedure which was adopted in case of his appointment. The petitioner was heard and while observing that neither any advertisement was published nor any interview was called while appointing the petitioner, the appointment of the petitioner was cancelled on 09.12.2005. It is this order, which is impugned in this writ petition.

3. On behalf of the State, counter affidavit has been filed. It is stated that appointment of the petitioner was illegal and it was so made by the then the District Inspector of Schools (the DIOS) Mr. Ramesh Chandra Premi. He was proceeded departmentally and a fine of 32,66,397/- was imposed upon the DIOS; he remained suspended also.

4. Learned senior counsel for the petitioner would submit that the order dated 30.08.2005, passed in the first petition had attained finality. The earlier order dated 01.11.1999, by which, the appointment of the petitioner was cancelled had already been quashed; the department was not given any liberty to proceed afresh against the petitioner; the department did not assail the order dated 30.08.2005, passed in the first petition. Therefore, it is argued that after the order dated 30.08.2005, passed in the first petition, the department could not proceed against the petitioner afresh.

5. Reference has been made to a departmental communication, which reveals that based on an opinion of the law department, further proceedings were done, post order dated 30.08.2005, passed in the first petition against the petitioner to argue that instead the department could have sought liberty from this Court, which they did not do and it makes whole procedure bad.

6. Learned senior counsel would submit that if department allows to conduct the way they have done in the instant case, there will be no finality of the judgment passed in this case.

7. The second limb of argument is with regard to the nature of the appointment, learned senior counsel would submit that the impugned order itself indicates that the appointment of the petitioner was irregular. On the strength of it, it is submitted that irregular appointment may be regularised. It is not illegality as per the department itself.

8. On the ground of equity, learned senior counsel would submit that though, at the strength of Court's order, the petitioner continued in service from 1999 to 2005; he is handicapped person; equity lies in his favour; he should be restored to the position, in which, he was placed just before the date preceding 09.12.2005. It is also submitted, that in all, ther