P.K. Mohanti, J.
1. 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 function and as a result the examination could not be conducted and the fees deposited by the candidates were refunded. Since the machinery for conducting competitive examination and selection had not been streamlined, the vacancies in the S.P.S. (Junior) were filled up from among the eligible candidates on the basis of the principles laid down in Annexure A and B. Since the petitioner did not satisfy the conditions of eligibility prescribed under Annexures A and B his case was not considered for ad hoc appointment.
7. As indicated earlier, the Recruitment Rules came into force on 14-9-1972. No appointment was, however, made in accordance with the rules on the ground that the Committee as envisaged under Rule 15 could not be constituted and ad hoc appointments were made on the basis of the principles laid down in Annexure A and B. The conditions of eligibility laid down in Annexure A and B were different from those laid down in Rule 10A of the Recruitment Rules. Annexure A provides that a candidate who had passed B. Ed. Examination in 1971 and earlier and entered service in 1971and earlier is eligible for selection for recruitment to S.E.S. (Junior). Annexure B provides that a candidate must be a B.A. , B.Ec., or B.Sc., B.Ed. on the date of selection and the seniority should be determined by his length of service in the L.S.E.S. It also provides that the year of passing the B.Ed. Examination would be no consideration for giving a candidate precedence over another candidate and that if two candidates are trained graduates on the date of selection their seniority for claiming the post would depend upon their period of service in the L.S.E.S. Thus, the principles laid down in Annexures A and B are inconsistent with the Recruitment Rules.
8. It is open to the Government to prescribe the conditions of service of Civil Servants by executive order in the absence of rules framed in that behalf under the proviso to Article 309. But once the rules are framed covering a subject, the rules cannot be varied or modified by executive orders, as the field is already covered by the rules. After the rules are framed appointment is to be made as per those rules and not by executive instructions. The Government is not authorised to make appointments contrary to the Recruitment Rules. In the case of Nagaraian v. State of Mysore : (1972)ILLJ565SC at p. 1948, their Lordships of the Supreme Court held that when a rule has been passed under the proviso to Article 309 it is not open to Government to modify or alter the rule by an executive order. It is one thing to say that if no rule has been passed under the proviso, conditions of service of Government employees can be regulated by executive orders, but it is a totally different thing that even after a rule has been passed covering the subject, executive orders can be passed to modify or alter it. When there was a statutory rule prescribing the qualifications and conditions of eligibility, it was not permissible for the authorities to disregard the rule altogether and prescribe a different standard for recruitment by executive instructions, Under the Recruitment Rules appointment is required to be made by selection. Appointment by selection means appointment on grounds of merit and ability. Opposite party Nos. 4 to 12 who were appointed on ad hoc basis in the defiance of the Recruitment Rules framed under Article 309, have not been selected on the grounds of merit and ability. Their appointment was not on any selection basis. Thus, the appointments made in violation of the rules were invalid.
9. There is no denying the fact that the petitioner possessed the requisite qualifications prescribed under the Recruitment Rules. His case was not considered for selection. A Civil Servant has a right to ask for consideration of his claim for promotion along with others who are similarly situated. Non-consideration of the petitioner's case resulted in clear infraction of his right guaranteed under Article 16 of the Constitution. Where an eligible person has been discriminated in the matter of appointment, it is no answer to say that because the appointments were made on ad hoc basis, he had no right to be considered. Consequently, the appointment of members of opposite party Nos. 4 to 12 which was made without considering the case of the petitioner is illegal.
10. The appointment of opposite party Nos. 4 to 12 to S.E. S. (Junior) made during the period from 1974 to 1978 is sought to be regularised under the Regularisation Rules purported to have been framed in exercise of the powers conferred by the Proviso to Article 309 of the Constitution. Rule 3(1) of the Regularisation Rules provides as follows:
Notwithstanding anything contained in the Recruitment Rules, but subject to other provisions of these Rules an irregular recruit, recruited and appointed as hereinafter provided, shall be deemed to have been validly and regularly recruited and appointed as an Assistant Teacher, Headmaster, Sub-Inspector of schools or Deputy Inspector of schools, as the case may be.
Sub-rule (2) of Rule 3 provides:
All appointments made to the Junior grade of the Service, such as, Headmaster of Middle English Schools, Assistant Teachers and Sub-Inspector of schools during the period from 14th Sept., 1972 to 14th November, 1975 by direct recruitment and from 14th September to 21st September, 1977 by promotion from among the members of the Lower Subordinate Education Service in contravention of Rules 6, 10A and 10B of the Recruitment Rules, shall be deemed to have been validly made and continued as such under the said Rules.
Under R2 of the Regularisation Rules an irregular recruit has been defined to mean any person appointed to the Service as Assistant Teacher, Headmaster of Govt. Middle English Schools, High Schools and Training Schools, Sub-Inspector of Schools and Deputy Inspector of Schools in contravention of Rules 6, 10A, 10B and 14 of the Orissa Subordinate Education Service (General Branch) Rules, 1972 and continued in service in contravention of the said Rules. Thus, it is clear that appointments made in contravention of the Recruitment Rules are sought to be validated by the Regularisation Rules.
11. Article 309 of the Constitution authorises the Governor to make rules for appointment and general conditions of service. Regulaiisation of illegal appointments by slating that notwithstanding the Recruitment Rules the appointment is regularised strikes at the root of the Rules. The effect of the regularisation is to nullify the operation of the Recruitment Rules. In the case of R.N. Nanjundappa v. T. Thimmaiah 1972-I L.L.J. 565 : A.I.R 1972 S.C. 1767, (1972) Lab. I.C. 618, the Supreme Court held that regularisation cannot be said to be a form of appointment and 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. Their Lordships further held that ratification or regularisation is possible of 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. In the present case, appointment of opposite party Nos. 4 to 12 was made in total disregard of the Recruitment Rules and in derogation of the petitioner's fundamental rights guaranteed under Article 16 of the Constitution. Non-compliance of the provisions of the Recruitment Rule? and the Constitution goes to the root of the appointment.
12. It was specifically provided under Annexure A that the promotions from I.S.E.S. to S.E.S. (Junior) after the Recruitment Rules came into force would be deemed as ad hoc promotions and subject to review by the Selection Committee. Similarly it was provided under Annexure B that teachers would be promoted from L.S.E.S. to S.E.S. with a clear understanding that they would have to go through the selection machinery and that they would have a claim over their posts only if they were selected and subsequently appointed in S.E.S. It was further provided that the period for which such promotes would hold the promotional posts would neither put them in any advantageous position nor it would count towards their seniority as they were not selected and appointed to S.E.S. through regular process. Pursuant to the above instructions it was clearly mentioned in the appointment order in Annexure 4 that the period of ad hoc promotion to the S.E.S. would not put the promotes in any advantageous position not it would count towards their seniority when they would be selected and appointed in S.E.S. through regular procedure. But in contravention of the above conditions, provision was made in Sub-rule (2) of Rule 4 of the Regularisation Rules that the position of an irregular recruit shall be immediately above the persons who are recruited under Rules 6, 10A, 10B and 14 of the Recruitment Rules. It is also laid down under Rule 6 of the Regularisation Rules that the provisions of those Rules shall have effect, notwithstanding anything inconsistent therewith contained in the Recruitment Rules or any other Rules or instructions for the time being in force. Thus, it is clear that the effect of the regularisation is to nullify the operation of the statutory rules and the executive instructions. The Regularisation Rules cannot be allowed to attend to operate as a regularisation of illegal appointments.
13. In the premises aforesaid, we have no hesitation in concluding that promotions of O.P. Nos. 4 to 12 to S.E. S. (Junior) are invalid. The Regularisation Rules published under Notification No. 1617/78 dated the 17th November, 1978 of the Education and Youth Services Department are declared void. Both the writ petitions are allowed with costs and one set of hearing fee.
N.K. Das, J.
14. I agree.