Bashir Ahmad Malik vs State of J&K and Ors.

Doabia, J.—The appellant submits that he having worked for more than three and a half year with the State Administration was entitled to

get his services regularised in terms of Government Order No. GAD1220 of 1989 dated llth Sept.. 1989. This assertion of his did not find favour

with a learned Single Judge of this court. It was held that no direction can be issued to regularise the services of the appellant. It is in these

circumstances, the appellant has filed this appeal under Clause 12 of the Letters patent.

The appellant came to be appointed as a Junior Crafts Instructor on 17th Feb.. 1989. This was for a period of three months or till the formal

selection of suitable candidates is made by the Service Selection Board. Another order came to be issued on 5th Sept.. 1989. This was for the

post of Junior Stenography Instructor. The tenure was similar. About fifteen order of similar tenure came to be issued in about three years period.

The appellant submits that as he had continued in service for all these years, therefore, he is entitled to continue in terms of Government order

dated llth Sept.. 1989

The respondentState filed objections. The break up of the service tenure has been indicated. From 7th Feb. 1989 to 11thJune. 1991 eight

orders giving adhoc tenure for various periods of 89 days or three months were passed. There was a stipulation that the tenure would come to an

end on the expiry of the term or till regular appointments are made by the Selection Board. Services of the appellant were terminated on 31st July.

1991. The appellant was again appointed on 9th Sept.. 1991. Thereafter seven other orders came to be issued. All these were adhoc in nature

with a clear stipulation that the services of the appellant would be terminated either on the expiry of the term or in the event of regular selected

came to be appointed. These facts and figures have been given in para No. 1 of reply on merits.

Question of regularization of an irregularly appointed candidates would arise if the concerned candidate is appointed in an irregular manner or on

adhoc basis against an available vacancy which stands sanctioned. If the initial entry itself is unathorised and is not against any sanctioned vacancy,

question regularizing incumbent on such a nonexisting vacancy would never survive for consideration even if order of regularisation is made it would

amount to decorating a stillborn baby. See Ashwani Kumar Vs. State of Bihar, (1997) 2 SCC 1.

In the present case, the appellant came to be appointed with a clear stipulation that he would continue in service either till the completion of his

tenure indicated in the order of appointment or upto the date, the vacancy is filled in a regular manner. There is no continuity in service. It this be

the position, then the appellant cannot contend that he should be allowed to continue in service notwithstanding the fact that his tenure was for a

limited period and there was a clear stipulation that he will have to vacate as soon as regular incumbent joins. The Government Order of llth Sept.,

1989 would not apply. Continuity in services is a condition precedent for seeking regularisation in the above order. This is missing in this case.

The appellant has continued in services in pursuance of interim orders passed by this court. This would not improve his claim for regularisation.

See State of U.P Vs. Raj Karan Singh (1998) 8 SCC 529. Again what was said by the Supreme Court in the case reported as 'Keshav Narayan

Gupta and Ors Vs. Jila Parishad Shivpuri (MP) and Anr, (1998) 9 SCC 78, can be taken not of. It was observed that the appellants in the above

case be allowed to continue till regular appointments to the posts occupied by them are made. The relevant observations made by the Supreme

Court in the aforementioned case are reproduced below.

Hence, if any regular appointments are made, the cases of the appellants should also be considered by having, if necessary, the age bar. We see

some force in this contention. We, accordingly, direct that when regular appointments to the posts at present occupied by the appellants are made,

the cases of the appellants will also be considered alongwith the other applicants by waiving the age bar in the case of the appellants, if necessary.

Until such regular appointments are made the appellants will continue to function on an adhoc basis as of now.

It is directed that appointment be allowed to continue till a regular selection is made. In case of a regular selection, the appellant's claim be

considered alongwith other candidates in relaxation of the age bar.

It would further be apt for the State to see to it that adhoc arrangement are not permitted to be continued for six years to come. Needless to

mention that adhoc appointments do not advance the cause of the State and even the cause of the employees who are so appointed. The policy of

adhocism adopted by the State Government for a loeg time results in breach of Article 14 and 16 of the Constitution. Adhoc appointments are

unreasonable and these are nothing but the archaic hire and fire policy since demolished by the Constitution and law of land. The system of making

appointments on adhoc basis for varying periods is clearly violative of Constitutional protection. It is a character for arbitrary preference which

should not be used as an administrative licence to ignore the service conditions and rights of others. Provisional appointments are to be made in

very urgent cases. This power is to be invoked sparingly.

With these observations, the appeal is disposed of.