J&K Service Selection Board And Anr vs Pawan Kumar And Others

The present Letters Patent Appeal has been preferred against the judgement and order dated 27.12.2018 passed in SWP No. 556/2015.

Since there is a delay of 167 days in preferring the appeal, an application seeking condonation of delay has been filed by the appellant. In the

application, the applicant has tried to explain the delay by stating that on receipt of copy of the judgement dated 27.12.2018 from the Court, the record

of the case was processed at different levels for the implementation or otherwise of the judgment.

It is further stated that after the matter was examined at different levels, the issue was referred to the Law Department for its examination and

opinion and that the Law Department vide communication dated 16.04.2019 sanctioned the filing of the present appeal. It is further stated that upon

receipt of communication dated 16.04.2019, the counsel took steps for drafting the LPA and that considerable time was consumed in preparing the

same, as the documents were not legible and some of the records had to be obtained from Srinagar.

On a bare perusal of the condonation application, it transpires that the averments made in the application are general in character and do not at all

explain as to how and at which level the delay took place.

While delay is bound to take place in the normal functioning at the different levels of the governmental hierarchy and further that it may not be

necessary to explain each and everyday‟s delay, yet the explanation should be one which inspires confidence that the delay was indeed, such, which

could not have been avoided.

The communication dated 16.04.2019 addressed to the learned counsel for the appellant does not at all refer to any communication which was

addressed to the Law Department for its opinion. In our opinion, the delay has not been satisfactorily explained. However, considering the fact that the

learned counsel for the appellant emphasized that an important question of law arises in the present LPA, we decided to examine the matter on merits

along with the condonation of delay application.

The case of the petitioner/respondent No. 1 before the Writ Court was that he had responded to an advertisement No. 01 of 2011 dated 31.01.2011

for the post of Cultural Assistant, as an in-service candidate. At this stage, it is necessary to reproduce the relevant clause from the advertisement

notice prescribing the age of eligibility :-

“I (D) Age as on 01.01.2011 should not be :-

(i) below the age of 18 years

(ii) above the age of:

a. 37 years in case of Open Merit.

b. 40 years in case of SC/ST/RBA/ALC/OSC candidates.

c. 39 years in case of Physically challenged candidates.

d. 48 years in case of Ex-Servicemen.

e. 40 years in case of candidates already in

Government Service/ Contractual employees.â€​

The petitioner perhaps wanted the benefit of Clause I(D)(ii)(e), which prescribed the maximum age of 40 years in case of in-service Government

employees/ contractual employees.

To show that the petitioner was an in-service candidate, reliance was placed upon the initial order of engagement dated 03.06.2006 issued by the

Chief Education Officer, Doda, appointing inter alia the petitioner whose name was figuring at Sr. No. 3 in the said order, wherein the petitioner was

engaged as Teacher in the subject of Botany on a consolidated pay @ Rs.7,000/- per month on contractual basis for a period of sixty days.

Subsequently vide order dated 05.08.2006, the CEO, Doda issued an extension order indicating that the candidates already engaged on contractual

basis be permitted to work for a period of sixty days more with a break of two days with the same terms and conditions.

Vide order dated 10.10.2006, the terms of petitioner/respondent No. 1 was further extended, which reads as follow:-

“All Post-Graduate candidates already engaged on contractual basis (on academic arrangement basis) in your school in various subject for a period

of sixty days may be allowed work for further a period of sixty days more with a break of two days with the same terms and conditions laid down in

previous orders, except those candidate engaged on rationalized posts.â€​

Subsequent orders of extension appear to have omitted the phrase „on contractual basis‟ and substituted the same with „on academic

arrangement basis‟. The reason why the petitioner was trying to establish his case as an in-service candidate working on contractual basis was the

advertisement notice, which prescribed the age of eligibility as 40 years.

Much before the issuance of the advertisement notice dated 31.01.2011 there was in existence the Government order No. 102 GAD of 2007 dated

27.01.2007, which clarified that the contractual employees would be deemed to be in-service candidates for grant of relaxation in the upper age limit.

The petitioner‟s/respondent No‟s. 1 application was, accordingly, forwarded by his parent department and on the basis of merit found his name at

Sr. No. 1 in the select list in the Open Merit category. However, the recommendation for appointment was withheld for the following reasons:-

“Recommendation withheld subject to the production of order mentioning that the applicant was appointed as contractual Lecturer.â€​

It appears that the Directorate of School Education, Jammu responded to the communication dated 10.02.2014 issued by the Secretary, Service

Selection Board, which is as under:-

“Kindly refer to the subject/reference cited above. In this context, I am directed to enclose the order copy and experience certificate issued by the

Principal HSS Malanoo, District Doda in favour of Sh. Pawan Kumar, S/o Hans Raj Gupta worked as contractual basis on academic arrangement

Lecturer since 06.06.2006 to 20.12.2013 vide Director School Education Jammu’s No. DSEJ/Gen/Acad/3334-40 dated 23.05.2006, now appointed

as Cultural Assistant (Jr. Scale) forwarded by CEO Doda’s No. CEO/D/Estt/27880-81 dated 20.12.2013 for favour of further necessary

action.â€​

Failure to get appointed the petitioner was forced to file the writ petition, which was allowed by the Writ Court by virtue of judgement and order

impugned dated 27.12.2018. The Writ Court held that there was no reason not to consider the petitioner‟s engagement on contractual basis, especially

when the Education Department‟s communication dated 25.02.2014 had specifically clarified that the petitioner had been working on contractual basis

from 06.06.2006 to 20.12.2013. It was further held that while the initial orders of appointment and extension did not mention the words „academic

arrangement‟, the same were incorporated in the subsequent communications. It was thus held that any candidate appointed on contractual basis for

teaching would be for academic purposes only and therefore, would not make any difference to the nature of appointment of the petitioner.

The controversy thus revolves around as to whether the respondent No. 1 was entitled to be categorized as a contractual employee with a view to

enable him to get the benefit of Clause I(D)(ii)(e) of the advertisement notice in regard to age and whether there was at all any difference between a

contractual employee and one engaged on academic arrangement basis.

Learned counsel for the appellant could not satisfy us as to how the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010 (in short the

Act of 2010) and in particular definition of contractual appointee under Section 2(f) therein could be read to disentitle the respondent No. 1 from

claiming himself to be an in-service candidate. Section 2(f) of the Act of 2010 inter alia defines “contractual appointee†to mean a person who

has been appointed on contract basis against any post under the Government.

Since reliance has been placed upon the Act of 2010, we may briefly refer to the same.

Section 5 of the aforementioned act is the charging section, which envisages the regularization of adhoc or contractual or consolidated appointees

subject to the following conditions:-

(i) that he has been appointed against a clear vacancy or post;

(ii) that he continues as such on the appointed day;

(iii) that he possessed the requisite qualification and eligibility of the post on the date of his initial appointment on adhoc or contractual or consolidated

basis as prescribed under the recruitment rules governing the service or post;

(iv) ……………………….

(v) ……………………….

……………………….â€​

A reference to the initial order of engagement of the respondent No. 1 issued as early as in the year 2006 reflects that the petitioner was engaged

on contractual basis against an available vacancy, although on a consolidated pay of Rs. 7,000/- per month and with nominal breaks. Even the Act of

2010 does not in any manner disentitle the respondent No. 1 to claim the status of a contractual employee.

The respondent No. 1 has competed on his own strength in the Open Merit category and figured at Sr. No. 1 in the merit list. To deny him the

benefit as an in-service candidate, in our opinion, would be thus not only unjust but even contrary to the initial term of engagement of the petitioner as

also the clarification issued by the General Administration Department dated 27.01.2007.

Having considered the matter, in our opinion, we cannot persuade ourselves to allow either the application, seeking condonation of delay or for that

matter, the Letters Patent Appeal, which is also found to be without any merit and is accordingly dismissed along with connected application.

Disposed of accordingly.