Liyaqat Hussain Zarger vs State and Others

Petitioner seeks issuance of writ of Mandamus, commanding the Respondents to regularize the services of the petitioner with retrospective effect

and to grant all service benefits of the post. He also seeks a direction prohibiting the respondents from dispensing with the services of the petitioner

or adjusting some other person against the post held by the petitioner.

The petitioner was appointed as an orderly in the pay scale of Rs. 750940/ for a period of 89 days by the respondents No. 2 vide his order

dated 29.07.1997. He seeks regularization of his service on the ground that he has been performing the duties to the satisfaction of his superiors

and has also performed the election duty.

Respondents have filed the reply stating therein, that the petitioner has concealed the fact that after his adhoc appointment he filed a civil suit on

the same facts and grounds before the Learned 1st Additional Munsiff, Srinagar and is continuing on the strength of the interim directions of the

Civil Court. He has not come to the court with clean hands. The services of the petitioner are not required and the appointing authority has not

extended the adhoc appointment of the petitioner.

The plea of the leaned counsel for the petitioner is that since the petitioner has been working against the post for the last five years and having

also discharged the election duty, the respondents are under obligation to regularize the services of the petitions.. The learned counsel for the

petitioner has not made out before the court by citing any law that the petitioner having discharged the election duty is entitled to the regularization

of his services. The plea of the learned counsel for the petitioner has been controverted by the respondents in para 2 of the reply, which reads as

under :

It is not denied that petitioner was appointed temporarily in 1997 as orderly. However, it may be apposite to mention in here that at that time the

services of petitioner were required only for 89 days and as such services of petitioner was engaged only for 89 days. However, the petitioner was

continued duty but to the interi orders from the court of learned 1st Additional Munsiff, Srinagar. Had it not been so, petitioner would have not

continued. So keeping this important aspect of the case in view, petitioner has no legal right to seek regularization by saying that he has continued

since 1997. As already submitted petitioner is continuing on the basis of court directives. The application of the petitioner seeking extension of his

temporary appointment was rejected by the competent authority i.e. Director, Fund himself who had appointed him initially for a period of 89

days.

It is not denied that the petitioner has been appointed on adhoc for a period of 89 days and the said period has not been extended by the

respondents. The appointment of the petitioner, therefore, by efflux of time stood determined. This proposition of law has been settled by the

Supreme Court in case title Director, Institute of Management Development, U.P. vs Pushpa Srivastava, reported in AIR 1992 S.C. 2070 holding

that:

Where the appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding

such post can have no right to continue in the post. This is so even if the person is continued from time to time on 'adhoc1 basis for more than a

year/He cannot claim regularization in service on basis that he was appointed on adhoc for more than a year"".

The only provision of law for ad hoc appointment is Rule 14 of J&K Civil Services (Classification and Control Appeal Rules 1956 (hereinafter

called ""Rules of 1956""). The petitioner has been appointed by the Respondent No. 2 in exercise of the power contained in the said provisions of

law. It is not made out by the learned counsel for the petitioner that this provision of law has been followed and satisfied by the respondent No. 2

for adhoc appointment of the petitioner. Learned counsel for the respondent in rebuttal has submitted that the petitioner's appointment cannot be

continued for the reasons that neither it has been extended by the appointing authority nor made by following Rule 14 of the Rules of 1956. Similar

question was before the Division Bench of this Court in case titled Mumtaz Akhter vs. State and ors. reported in 2001 SLJ 22 where the

petitioner's adhoc appointment was made for a period of 60 days or till the post is filled up by the competent authority and the said petitioner

approached the court for regularization of the services against the post. The Division Bench considering appointment vizaviz Rule 14 of the Rules

1956, held as :

The appointment of the appellant admittedly is on adhoc basis for a period of sixty days, Adhoc appointment can be made only in accordance with

the provisions contained in Rule 14 of the Rules of 1956, which is extracted below:

Temporary appointment :Where it is necessary for the public interest owing to an emergency which has arisen and could not; have been

foreseen, to fill immediately a vacancy in a post borne on the cadre of service, class or category and the making of an appointment to such vacancy

in accordance with these rules would involve undue delay, excessive expenditure or administrative inconveniences, the appointing authority may

appoint a person otherwise than in accordance with these rules temporarily with the prior approval of the Chief Minister in coordination until a

person is appointed in accordance with these rules but such temporary appointment shall in no case exceed three months on each occasion and not

more than nine months in all.

This provision of law envisages that due to unforeseen emergency, if a post is required to be filled in public interest till it can be filled up in

accordance with the rules and the prescribed procedure, the appointing authority may appoint a person otherwise than in accordance with rules

with the approval of the Chief Minister in coordination and such appointment shall in no case exceed three months on each occasion and not more

than nine months. Chief Minister Officer, Anantnag has appointed the petitioner neither in accordance with rules nor referring the case for approval

of the Chief Minister in coordination, for adhoc appointment of the appellant. Learned counsel forthe appellant could not make out that this

provision of law has been taken care by the appointing authority, while appointing the appellant. We hold that the appointment of the appellant

being dehors Rule 14 of the Rules of 1956, he is not, therefore, entitled to seek regularization.

For continuation of the petitioner, it should be made out that the initial appointment is in conformity with specific law and not made either in

breach of or ignoring the said provision of law. The appointment of the petitioner being found made in breach of the Rule 14 of the Rules of 1956

cannot, thus, be continued.

Another argument of the learned counsel for the Respondents is that the petitioner being continuing on the strength of the interim orders of the

Civil Court is not entitled to the relief prayed for as the continuation on the strength of the interim directions does not improve his case either for

regularization or continuation. In sup port of this plea he has relied upon the judgement of the Supreme Court delivered in case State of U.P. and

ors. vs. Rajkaran Singh reported in 1998 (8) S.C.C. 529 holding thus:

Besides, merely because a person continues under the interim orders of the court, such continuance on the post cannot and, in this case, does not

confer on him any right for continuance, it does not enhance his case of regularization. It is only an interim arrangement pending decision by the

court and cannot disturb the position in law or equities, as on the date of the Petition.

For the aforesaid reasons, the petitioner k. not entitled to the relief prayed for. Writ petition is dismissed accordingly.