Gh.Hassan Naik vs District Development Commissioner & Ors.

The common points of law involved in these petitions are:

Whether the appointments made by the Chairman or any member of a Committee constituted vide Govt. Order No, A62 GR of 1990 dated,

16.4.1990, though on adhoc basis, is required to be regularised and cannot be discontinued later on ?

Whether temporary appointments made under rule 14 of the Jammu and Kashmir Civil Services (Classification Control and Appeal) Rule, 1956

once made cannot be discontinued till a proper selection is made?

Head the learned counsel for the parties appearing in the case.

In order to appreciate the rival Contention of the parties, some facts pertaining to the appointments of ClassIV employees and other employees

and other basis are required to be noticed. In the Circular No. 39GD of 1988 dated 1971988, it was directed that as the Chief Secretary had

observed that various departments had committed irregularities in making appointments of ineligible candidates, the departments should thereafter

process the case for appointment on adhoc basis for obtaining approval of the Hon'ble Chief Minister in Coordination. The Chief Secretary

desired not to process such cases in future and put a totalstop to all irregular appointments hence forth and once for all. All the

CommissionercumSecretaries to the Govt. were requested to furnish the General Department a list of all such cases pending with them for orders

of the authorities and maintain strict check in the departments and also to institute action against such officials/officers responsible for committing

such irregularities. Vide Govt. Order No. 797 Edu. of 1989 dated 2671989 issue 1 by CommissionercumSecretary to Govt. Education

Department, sanction was accorded to the constitution of Committee of the officers mentioned therein for making recruitment to the posts falling

outside the purview of Jammu and Kashmir State Service Subordinate Board in Education Department and its allied department. For Jammu

Division, the Committee comprised of the Director, School Education, Jammu, as Chairman, Joint Director, Principal Higher Secondary School

Palanwalla and Under Secretary Education as members. Vide Govt. Order No. 462GR of 1990 dated 16 490, it was provided, ""In supersession

of all previous order/circulars instructions issued by the Govt, from time to time on the subject, it is hereby ordered that the recruitment to all

sanctioned posts falling outside the purview of the State Subordinate Services Recruitment Board including all category ClassIV posts shall hence

forth be made by the Appointing Authority on the recommendations of a board constituted in each district consisting of the following :

(1) District Development Commissioner Chairman

(2) District Superintending Engineer Member

(3) District Education Officer Member

(4) District Employment Officer Member Secretary

The jurisdiction of the District Recruitment Boards will extend to all category IV of posts whether they are included in the District, Divisional or

State Cadres

Chairman will be competent to coopt any other officer as a Member for a particular meeting of selection. District Head of the Department to which

the recruitment relates will ordinarily be coopted for the selection.

The Board shall restrict selection of candidates for posts in a District to candidates for their districts only.

The Board shall try as far as possible to recruit local candidates in each area for locals vacancies like that in Gurez, Karnah, Bani, Gool, Gool

Gulabgarh, Paddar etc.''

The said Government order was partially modified vide Govt. order No. 503 GAD of 1991, and it was directed that District Level Committee

consumed under the District Development Commissioner for making selection for appointment to the posts falling outside the purview of State

Subordinate Services Recruitment Board including all ClassIV posts, shall make selection for such posts only which are in the District Cadre. It

was further directed that for the Divisional and State cadre posts including such posts in the Civil Secretariat the competent authority shall make

appointment on the basis of the recommendations of the Committee constituted vide the said Government order. Vide Govt. Order No. l178Edu

of 1992 dated 13111992 issued by the Commissioner/Secretary to Govt. Education Department, it was directed that selection for non gazetted

posts be made only against clear vacancies through J&K Subordinate Service Recruitment Board after following the proper procedure and for

ClassIV posts appointments be made after due selection by the Committee empowered in that behalf. In writ Petition No. 1234/1992' the

petitioner was appointed as a Chowkidar by the District Development Commissioner and allowed to continue for a period specified therein or till

selection was made by the competent authority, whichever was earlier. As the respondents were of the view that the District Development

Commissioner was not the competent authority to make appointment of the petitioner his continuance after the prescribed period was uncalled for.

The petitioner in that writ petition has prayed that he should be allowed to continue in service as Chowkidar till the final selection is made by the

competent authority and paid all his dues regularly. The appointments the petitioners is stated to have not been continued after 30th of November,

1992, in view of 'he standing directions in that behalf as referred to hereinabove. It is submitted that Deputy Commissioner being only a member of

the Committee was not empowered to make the appointments of the petitioner, and the petitioner has no right to pray for continuing to remain in

service.

In writ petition No. 840/1992, the petitioner was appointed as a peon/Laboratory bearer in Higher Secondary School, Batote, by the District

Education Doda, as per the desire of the District Development Commissioner, Doda and was, thereafter, continued by District Education Officer

vide Annexure ""P/5"". This petition has been resisted on the same grounds as noticed in case of writ petition no. 1234/1992.

In writ petition No: 1179 in the petitioner was initially appointed as Junior Assistant by the Zonal Education Officer, Banihal. His adhoc

appointment is claimed to be covered by rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. It

was held in Kashmir University v/s Moh Yasin and others AIR 1974 SC 238 that when a Statute creates a Board or Authority and vests it with

authority and circumstances under which the appointments can he made, the order of appointment must be passed strictly in accordance with such

limitations and circumstances for which the doctrine of implied engagement de hors cannot be applied. The Supreme Court in that case held:

When a statute creates a body and vests it with authority and circumscribes its powers by specifying limitations, the doctrine of implied

engagement de hors the provisions and powers under the Act would be subversive of the statutory scheme regarding appointments of officers and

cannot be countenanced by the Court. Power in this case has been vested in the University Council only and the manner of its exercise has been

carefully regulated. Therefore, the appointment of the respondent could be made only by the Council and only in the mode prescribed by the

statute. If a ViceChancellor by administrative drift allows such employment it cannot be validated on any theory of fact urn valet, we cannot

countenance the alleged continuance of the respondent in the University campus as tantamount to regular service under the University with the

sanction of law. In short, the respondent has no presentable case against the direction to quit.

Such a principle would be applicable in case of employment under the State required to be regulated by issuance of circulars and notifications by

the employer/State as well. It is well settled that a person seeking the issuance of a writ of mandamus is to satisfy the existence of a statutory or

public duty cast upon the respondent against when the said writ is directed. Along with a public duty cast upon the respondents, the petitioner has

to show the existence of a corresponding right in him and unless these two conditions are satisfied, the requisite foundation for the issuance of writ

of mandamus cannot be said to be existing. The facts narrated here in above clearly show that no powers vested in the respondents to legally order

the appointment of the petitioners to the posts, nor any right exists in favour of the petitioners for which a command be issued for enforcement of

their proclaimed right. The appointments made by the Chairman or any member of the Committee cannot be equated with an order of appointment

by the Committee, a corporate body. As an orders were passed by the competent authority, the petitioners have no right to continue to hold the

post beyond the period for which they were appointed, and have no right to seek regularisation of their service or issuance of a command to the

respondents to allow them to continue to hold the post till the selection is made, by issuance of fresh orders of adhoc appointments in their favour

with usual breaks.

In similar circumstances, while rejecting the plea of the petitioner, this Court while deciding writ petition No. 854/1992 entitled: Ashaq Hussain Vs.

State of J&K and others on 3.3.1993 held:

...Recruitment Board, having statutory existence. in this case the Board bad not selected the petitioner. He has been appointed only on the

recommendations of the District Development Officer, who happens to be the Chairman of the aforementioned Board. In any case the

appointment of the petitioner has not been made on regular basis.

In order to succeed in a writ of mandamus* the petitioner has to established a legal right in him and the corresponding legal obligation in the

authority to grant the relief claimed. In the present case the petitioner served for 8/9 months in stop gap arrangement. He was not selected by the

statutory Selection Board. By serving for 8/9 months, the petitioner has not acquired any right to continue on the post...''

Writ petitions No. 840 of 1992 and 1234/92 therefore, have no merit and are, accordingly, dismissed. Interim stay issued in these petitions shall

stand vacated and CMPs disposed of.

So far as Writ Petition No. 1179/1992 is concerned, the learned counsel for the petitioner has relied upon rule 14 of the Jammu and Kashmir Civil

Services (Classification, Control and Appeal) Rules, 1956, to urge that he has a right to continue to hold the post till a person is appointed in

accordance with the rules and that the respondents have no right to terminate his services. The reliance of the learned counsel is misplaced, in as

much as he has failed to show that the temporary appointment contemplated in the rule in case of the petitioner had been nude, ""with the prior

approval of the Chief Minister in coordination"". It appears, that the petitioner has referred to rule 14 prior to its amendment wherein the words

quoted hereinabove were not mentioned. Otherwise also, the argument of the learned counsel is far fetched and, if accepted, is likely to adversely

affect the morale of the services. Adhoc appointments are not seen with favour by the Courts and are required to be discouraged. Under the garb

of adhoc appointment, no person has a right to claim permanent absorption or continuance to the post, with the result of hope of continuing to hold

the post permanently. The learned counsel for the petitioner in that case has relied upon the judgment of the Supreme Court in Rattan Lal and

others V/s State of Haryana and others, (1985 (IV) SCC 43) to party that he has a right to continue to hold the post to which he was appointed

on adhoc basis. In that case also, the Supreme Court deprecated the practice of adhoc appointments and directed the State Government of

Haryana to fill up she posts of teachers in accordance with the rules, but keeping in view the long periods of adhoc appointments of the petitioners

therein, directed those petitioners to hold the posts on adhoc basis till vacancies were duly filed up. It was observed that the State Government

may also consider sympathetically the question of relaxing the qualification of maximum age prescribed for appointment to those posts in the case

of those who had been victims of the system of adhoc appointments.

Similarly, in the case of M""t, Mahbooba Akhtar V/s State and others, this Court directed the respondents to allow the petitioner therein to hold the

post till selection was made on the ground that she was found to be in service on the basis of extensions granted from time to time.

In State of Haryana V/s Piara Singh AIR 1992 SC 2130 it was held that creation or abolition of the post in the prerogative of the executive, for

which do direction for regularisation can be issued by the Court. The power to prescribe conditions of service can be exercised either by making

rules under the provisions of Article 309 of the Constitution or by issuing instructions in exercise of the Executive power. The Court comes into

picture only to ensure the observance of the fundamental rights, statutory provisions, rules and other instructions, if any, governing the service

conditions, as the main concern of the Court is to ensure the rule of law and to see that the executive acts fairly and gives a fair deal to its

employees consistent with the requirements of Articles 14 and 16 of the Constitution, However, dealing with the case of the petitioner, wherein

they were found to have been continued for years together on adhoc basis, the Supreme Court issued appropriate directions.

Even on facts, the case of the writ petitioner in writ petitioner No. 1179/1992, is not covered by the plea raised by him, in as much as, he was

initially appointed as a Junior Assistant on adhoc basis for a period of two months, but subsequently appointed as peon/Chowkidar in Middle

School, Banihal, a post which is required to be filled up by the Committee constituted for the purposes of making appointments for ClassIV

employees. There is no merit in this petition also.

The result is that writ petition No. 1179/92 is also dismissed, and the interim stay order issued is vacated, disposing of connected CMP.