Rajendra Menon, C.J. (Oral)

1. The matter has been placed before this Bench (Full Bench) in view of an order passed by the Division Bench in this case on 21.6.2016.

2. The issue involved in the writ petition pertains to appointment on the post of Senior Scientific Assistant, regular appointment, and the question of awarding marks to the candidates, who are participating in the process of selection, for the experience gained by them by working earlier in the department on contract basis.

3. Even though various questions are raised in the writ petition and the matter was pending consideration before the Division Bench, on 21.6.2016, while considering various issues, it seems that an order dated 10.4.2015 passed by a Division Bench of this Court in CWJC No. 855 of 2015, was brought to the notice of the learned Division Bench and it was argued that in view of this order passed by the Division Bench on 10.4.2015, the candidates who have been awarded marks on the basis of experience for the contractual appointment granted to them, needs no interference. However, after taking note of the order passed on 10.4.2015 in CWJC No. 855 of 2015, the learned Division Bench was of the view that in view of the decision of the Constitution Bench in the case of Secretary State of Karnataka & Ors. v. Uma Devi & Ors. (2006) 4 SCC 1 , equal opportunity to participate in public employment has to be granted and no premium in process of selection can be given to a persons who have got employment by back door or illegal method. It seems that taking note of the order dated 10.4.2015 in CWJC No. 855 of 2015, the law laid down with regard to the benefit to be granted to experience gained by contractual employees, the learned Division Bench observed as under:-

"Situated thus, we are, with great respect, find ourselves unable to agree with the conclusions reached by the order, dated 10.04.2015, aforementioned and, in our view, therefore, the decision needs consideration by a larger Bench so as to determine if marks for experience can be given in a selection process to those persons, who may have been working by virtue of appointment on contractual basis, the contractual appointment having been made without following any selection process.

Having considered the matter in its entirety, we are of the view that the matter needs to be referred to, and laid before, a Full Bench.

Registry shall accordingly place this matter before Honble the Chief Justice, on the administrative side, for constitution of a Full Bench so that the matter can be heard and decided expeditiously."

(emphasis supplied)

4. From a perusal of the observations, it is seen that the only question of law referred to us for consideration is as to whether the experience gained by a person by working in the department, may be, as contractual employee, a casual employee or an ad hoc employee, has to be counted irrespective of the fact as to whether appointment is after following due process of law or he is a back door entrant. This issue was not specifically addressed to in the order dated 10.4.2015 in CWJC No. 855 of 2015, (2015) 2 PLJR 916 and this seems to have been the cause of confusion and concern due to which the Division Bench has made the reference.

5. Even though Shri Lalit Kishore, learned Principal Additional Advocate General-1 and Mr. Anil Kumar Jha, learned senior counsel took us to certain observations made in the order under reference to say that the appointment of the selected candidates in the present case is after following the due process of law and their appointment is legal and therefore, they are entitled to the marks obtained for the experience gained, we are of the considered view that this is an issue which is to be determined by the learned Division Bench based on the pleadings in the counter affidavit and the material available before the Division Bench. However, learned counsels invited our attention to certain observations made in the order which reads as follows:-

"In the present case, too, there is nothing on record to show that contractual appointments were made by resorting to any legally sustainable selection process and, therefore, the question of giving marks for experience to such persons vis-a-vis those, who may not have had the chance of obtaining contractual appointment by a process unknown to law, does not, in our view, arise."

It is indicated by them that this observation is contrary to the facts or the materials available on record. For deciding the legal question referred to us for adjudication, we are not required to address this issue. It seems and we are informed that the aforesaid observations have been made by the learned Division Bench on 21.6.2016, when the pleadings of the parties were not complete and the counter affidavit of the State Government and the contesting parties were not on record. That being so, at this stage now after the pleadings have been completed and the counter affidavits have been filed, this issue/question is to be reconsidered by the Division Bench based on the affidavits and materials available on the record.

6. For the present, we are only required to address the reference made as to whether the law laid down by the Division Bench on 10.4.2015 in CWJC No. 855 of 2015 2015 (2) PLJR 916 will have universal application in all cases, i.e. as to whether a person working in the department and who has gained experience by so working, being a contractual employee, a daily wage employee, casual employee, etc. is entitled to the benefit of experience without any restriction/rider. This takes us to the issue of induction of a person into public service and the question of benefit to be granted to such persons and the question of any restriction based on the process followed for employment or induction into public service.

7. The Constitution Bench of the Supreme Court in the case of Uma Devi (supra) has laid down the principle that appointment to the public service has to be made after following the mandate of the constitution and fulfilling the requirement of Article 14 of the Constitution. In the aforesaid case, the Constitution Bench has clarified appointment to Government service into two categories illegal appointment and irregular appointment and while considering the question of regularization in service, it was held by the Honble Supreme Court that regularization can be only of an irregular appointment and not of illegal appointment. As to what is illegal appointment, it has been held that any appointment to public service without following the requirement of Article 14 or without following any process of appointment into Government service without complying with a process of law or de hors the rules of appointment, in view of Article 14, is unconstitutional and illegal and such illegal appointee cannot get any relief or any benefit.

8. That being so an experience gained by the person on the basis of illegal appointment acquired by him for being inducted into the service cannot be permitted. The benefit of experience can be given to only to those who are inducted into the service after following some process known to law, i.e. after undergoing a selection process and meeting the requirement of Article 14 of the Constitution.

9. Accordingly, we are of the considered view that the judgment and the order passed by the Division Bench on 10.4.2015 in CWJC No. 855 of 2015 cannot be given universal application and for counting experience of service gained by a person, the same cannot be granted until and unless it is established that the appointment and the experience, on such appointment gained, is after following some process known to law and induction into the service was after following some processes which meets the requirement of Article 14 of the Constitution as laid down in the case of Uma Devi (supra) and to that extent, we clarify/modify the order dated 10.4.2015 passed by the Division Bench in CWJC No. 855 of 2015. In deciding so, we may also take note of the fact that while considering as to whether an employee can be granted seniority for the service rendered by him by way of ad hoc appointment or stop gap arrangement, it has been the consistent view of the Supreme Court since 1990 in the case of Direct Recruits Class-II v. State of Maharashtra & Ors., AIR 1990 SC 1607 onwards that grant of seniority has to be reckoned based on the manner of induction into the service or post which has to be after following a process known to law or the rules of recruitment and any induction contrary and seniority gained on such induction cannot be counted. Accordingly, we answer the reference as under:

10. The order passed by the Division Bench on 10.4.2015 in CWJC No. 855 of 2015 will not have universal application in all cases. While considering the question of granting benefit of marks towards experience gained by an employee for working on contract basis, the manner of induction of the employee into service, i.e. the contract employee will have to be considered and only if the appointment even on contract basis is made after following procedure known to law meeting the requirement of Article 14 can a benefit be granted and not otherwise. The reference is, accordingly, disposed of.

11. The matter be now placed before the Division Bench for consideration in the next week.