Feroz Ahmad Mir vs Principal, Government Medical College & Anr

By medium of this petition, the petitioner has called in question the validity of order bearing No. 888 AH of 2019 dated 18th of February, 2019, in terms whereof his engagement on academic arrangement basis stands terminated ab initio from the date of his absence from duties.

After hearing the learned counsel for the parties and perusing the documents on record, what comes to limelight is that the petitioner was appointed as Laboratory Assistant on academic arrangement vide order bearing No. 238 of 2018 dated 20th of July, 2018 for a period of one year or till such time the post held by him is filled by the competent authority, whichever is earlier. The duration of such appointment of the petitioner was one year and during this year the petitioner had absented himself from duty, resulting in the issuance of the order impugned.

It is well settled position of law that while holding any post on academic arrangement, no indefeasible right vests with that individual holding such a post for claiming protection under Article 311 of the Constitution of India and Article 126 of the Constitution of State of Jammu and Kashmir. Likewise, as is the case herein this petition, no right of the petitioner could be said to have been violated by the respondents while issuing the impugned order. It is the conduct of the petitioner, coupled with the nature of engagement of the petitioner that has resulted in the issuance of the impugned order.

Be that as it may, the various Courts of the country, including Hon'ble the Supreme Court, have, time and again, taken the view that an individual holding any post on academic arrangement has no right to continue beyond the period specified for such arrangement and that these posts have to be, necessarily, filled up on year to year basis through regular mode.

A Division Bench of this Court, while dealing with a similar issue, in case titled 'Rajani Kumari & Ors. v. State & Ors', reported as '2017 (1) JKJ 310 (HC)', at paragraph No.7, has held as under:

"7. It is a separate and an independent method or manner by which appointment is made in a Government Department. Government in its wisdom has excluded the category of appointment made on academic arrangement basis for fixed term. The petitioners have no locus to challenge the wisdom of the Government in enacting such a provision. The language of Section 3 clearly provides that regularization will apply in respect of posts in the Government for which appointments are made on adhoc of contractual or consolidated pay. Therefore, it is referable to a particular post of a clear vacancy, whereas in these cases, petitioners have been appointed in Higher Education Department on fixed term on an academic arrangement basis. So, both cannot be equated on same terms. There is no arbitrariness in that as alleged. In any event, he implored upon the Court not to accept the interpretation as propounded by the petitioners. Mr. Sharma relied upon the judgment rendered by Hon'ble Supreme Court in case titled Union of India and Another Vs. Deoki Nandan Aggarwal reported in AIR 1992 SC 96, which was relied upon in a subsequent decision of the Hon'ble Supreme Court in case titled Satheedevi Vs Prasanna and Anr., reported in AIR 2010 SC 2777.

Their Lordships while dealing with the controversy in Deoki Nandan Aggarwal's case (supra), held in para Para 14 as under:

"We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as ―more than five years" and as ―more than four years‖ in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities. Vide P.K. Unni v. Nirmala Industries, (1990) 1 SCR 482 at p. 488: (AIR 1990 SC 933 at p.936), Mangilal v. Sugamchand RAthi (1965) 5 SCR 239: (AIR 1965 SC 101), Sri Ram Ram Narain Medhi v. The State of Bombay 1959 Supp. (1) SCR 489: (AIR 1959 SC 459). Smt Hira Devi v. District Board, Shahjahanpur 1952 SCR 1122 at p. 1131: (AIR 1952 SC 362 at p.365), Nalinakhya Bysack v. Shyam Sunder Haldar (1953 SCR 533 at p.545): (AIR 1953 SC 148 at p. 152), Gujarat Streel Tubes Ltd. V. Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCR 146: (AIR 1980 SC 1896), W. Narayanaswami v. G. Punnerselvam (1973) 1 SCR 172 at p. 182: (AIR 1972 SC 2284 at p. 2289), N. S. Vardachari v. G. Vasantha Pai (1973) 1 SCR 886): (AIR 1973 SC 38), Union of India v. Sankal Chand Himatlal Sheth (1978) 1 SCR 423: (AIR 1977 SC 2328) and Commr. of Sales Tax, U.P. v. Auriaya Chamber of Commerce, Allahabad (1986) 2 SCR 430 at p. 438: (AIR 1986 SC 1556 at pp. 1559-60). Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme will not also come under the principle of affirmative action adopted by courts sometimes in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power."

Further, in para 10 of Satheedevi's case (supra), their Lordships observed thus:

"Before proceeding further, we may notice two well recognized rules of interpretation of statutes. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction, only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise - Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 SCR 30 360: (AIR 1957 SC 907). The other important rule of interpretation is that the Court cannot rewrite, recast or reframe the legislation because it has no power to do so. The Court cannot add words to a statute or read words which are not therein. Even if there is a defect or an omission in the statute, the Court cannot correct the defect or supply the omission.- Union of India v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323: (AIR 1992 SC 96): 1991 AIR SCW 2754), Shyam Kishori Devi v. Patna Municipal Corporation (1966) 3 SCR 466: (AIR 1966 SC 1678)."

On this premise, it is pleaded that the prayer to declare Section 3(b) as ultra vires should be dismissed."

In the above background, coupled with the enunciation of law discussed hereinabove, this writ petition lacks merit, as a consequence of which, the same fails and shall, accordingly, stand dismissed in limine, alongwith the connected Interim Application, being IA No. 01/2019.