Only irregular appointments can be regularized; appointments made without proper advertisement are deemed illegal and can be canceled.

JUDGMENT :

(Per Hon’ble Justice Sujoy Paul)

This intra-Court appeal takes exception to the order passed by the learned Single Judge in W.P.No.27532 of 2023, dated 09.01.2024, whereby, the Writ Petition was allowed and the order impugned therein cancelling appointment of respondents herein was set aside.

Factual Background:-

2. The parties have fought a long drawn battle in the corridors of the Court. In one of the litigation i.e., W.P.No.31379 of 2021, the respondents herein prayed for a direction to regularize their services and assailed the advertisement No.1 of 2021 dated 16.08.2021, whereby an open advertisement was issued inviting the candidature from open market. This Court passed order on 03.12.2021 and directed the petitioners therein/respondents to submit their physical applications within seven days and in turn, the employer was directed to permit the respondents herein/petitioners therein to participate in the selection process. Admittedly, the petitioners therein were directed to participate in the selection process, but none of them could be selected.

3. Pursuant to the vacancy circular No.1 of 2023, dated 07.02.2023, the respondents submitted their application for selection for the posts of office attendants/laboratory attendants. The respondents were selected and one such appointment order dated 20/21.06.2023 is filed for example. However, subsequently by order dated 26.09.2023, the services of the respondents were terminated for the single reason that the said internal circular No.1 of 2023 was not in consonance with the recruitment rules and was issued without issuing any advertisement and without calling the candidatures from outside candidates. This cancellation of appointment became subject matter of challenge in W.P.No.27532 of 2023. The Writ Court opined that petitioners before it participated in the recruitment process and pursuant to Notification No.1 of 2021, dated 16.08.2021 became successful in mock test and they were accordingly appointed. On the basis of this premises, the Writ Court opined that the appointment of respondents at best can be treated to be ‘irregular’ and cannot be treated as ‘illegal’. The cancellation of appointment was accordingly interfered with. There was yet another reason for interference in the cancellation of appointment orders i.e., non-observance of the principles of natural justice.

Submissions of the appellants:-

4. Sri B. Narasimha Sharma, learned Additional Solicitor General of India appearing for appellants submits that the Regional Engineering Colleges (‘REC’) of country were governed by National Institutes of Technology, Science Education and Research Act, 2007 (‘NIT Act’). Thus, REC Warangal also became NIT. Under the said Act, a provision was made for issuance of rules/statutes. In furtherance thereof, statutes namely the First Statutes of NIT (‘Statute’) came into being on its publication in the official gazette w.e.f. 23.04.2009. By taking this Court to Statute No. 23, the learned Senior Counsel for the appellants submits that the posts were required to be filled up by issuing advertisement. Admittedly, in the instant case, no advertisement was issued pursuant to which present respondents were appointed. Instead, an internal notice was issued which was restricted within the institution wherein the present respondents were working and they alone submitted their applications. This recruitment process runs contrary to the statute and for this reason, no fault can be found in the action of cancellation of appointment. So far, the principles of natural justice are concern, the learned Senior Counsel argued in tune of Doctrine of useless formality. It is urged that even if the respondents would have been put to notice, they would not have been in a position to rebut the allegations and meet the reason of cancellation which is mentioned in the cancellation order itself. Putting it differently, it is urged that admittedly respondents have been appointed in pursuant to an ‘inte