Manzoor Ahmad Bhat and Another vs State and Others

T.S. Doahia,J.

On the recommendations made by the then Minister for Education, the Principal Higher Secondary School Ratnipora, Puhvama. issued a letter

of appointment in favour of appellants. For facility of reference the order passed in case of appellants is being reproduced;

Order Dated: 08041987 As desired by the Hon'ble Minister of Education, Jammu and Kashmir State, refer his No. MESL2860/87 dated:

01041987, and MESL2861/87 dated: 01041987, the following persons are temporarily appointed as Class IV employees (Orderlies) in the pay

scale of 345460 on the available posts, sanctioned vide Govt. Order No. 326 of 1986 dated: 03071986.

Manxoor Ahmad Bhat S/0 Ab. Rehman Bhat (PUC)

R/O Narwa, Puhvama.

Gulzar Ahmad Ha jam S/O Gh. Mohd Hajam (Matriculation)

R/o Ratnipora, Pulwama.

Sd/ Principal Higher Secondary School,

Ratnipora.

Copy submitted to the:

Director of School Education Srinagar for favour of confirmation. The applicants have reported this office on 06041987.

P. A. to Hon'ble Minister of Education, Jammu for favour of information of Hon'ble Minister.

Further fact is that appointment of these two appellants were terminated by the order dated: 12121987. These orders were passed by the

Director School Education. The orders passed in the cases of appellants are similarly worded. For facility of reference one such order is being

reproduced below.

DSE Order No. 585 of 1987 Dated: 12121987.

Whereas, Shri Manzoor Ahmad Bhal S/O Abdul Rahim Bhat R/O Naroo (Puhvama) has been appointed as Peon in the Government HSS

Ralnipora by the Principal HSS Ratnipora vide order No. MOS Edu No. HEM/22/38/87 dated: 25081987 in violation of the Recruitment rules

for the time being in force.

Now, therefore, the services of Manzoor

Ahmad Bhat S/O Abdul Rahim Bhat

R/O Naroo (Pulvvama) are hereby

terminated forthwith.

Sd/ Director School Education

Kashmir.

This order was subject matter of challenge in the writ petition. On 30121987, interim order was passed by the Court. This order was to the

effect mat if the impugned order has not been given effect to, it shall not be given effect to till further orders from this Court.

The State filed objections. The stand taken by the respondent/State was that the appointment of the petitioners is void ab initio, as same was not

made by the competent authority. It was stated that respondent No. 3 was not competent to make appointment to the posts on which writ

petitioners have been appointed. It is further stated that respondent No. 3, if at all could make appointment, he could not make the same beyond

three months. It was accordingly pleaded that, therefore, the appointment of the writ petitioners was void ab initio. Further plea was taken that

merely because order was passed at the instance of Minister of Education, would also not validate the status of the appellants. It was also

submitted that concerned Employment Exchange was supposed to send a panel of five candidates for each post of Class IV to the concerned

appointing authority where the vacancy would have been available. Thereafter, appointment could be made.

The learned counsel appearing for the appellant submits that at the relevant point of time Jammu and Kashmir Civil Services (Decentralization of

And Recruitment lo NonGazelled Cadres) Rules, 1969, were in force. It is stated that in terms of Rule 5, the appointing authority was competent

to make appointment to the posts of Class IV. It is submitted that so far Class IV posts are concerned, there was no necessity to refer the

vacancies to the Recruitment Board. It was further submitted that so far as peons are concerned, the Principal of Institution was the appointing

authority. For this reliance is being placed on Delegation of Special Administrative Powers to the Officers of the Education Department (School

Wing) Schedule 1D. It is stated that Head of High/ Higher Secondary Schools/Training Institutions were competent to make appointment of Class

IV posts and teachers in their schools. As these provisions are relevant, these are being quoted below.

Recruitment and Selection: (1) All appointing authorities shall make appointments to the posts to be filled by direct recruitment except the

following types of posts, strictly in accordance with the selection made by Recruitment Boards :

(i) Posts for which special treatment is expressly provided in any law for the time being in force;

(ii) Deleted.

(iii) Posts in Medical Education Department other than borne on the Civil Secretariat Cadre:

(iv) Class IV posts;

(v) Posts borne on workcharge establishment and paid out of contingencies in all the Departments;

(vi) Posts of cooks, Masalchies and similar other posts in Tavvaza and other Departments as the General Department may specify; and

(vii) Privilege leave vacancies;

Schedule ID

To whom delegated Extent

(i) Heads of High/Higher Class ,IV Servants

Secondary Schools/ and Teachers

Training Institutions. in their School.

A perusal of above rules will indicate that, so far peons are concerned, the appointing authority was the Head of the Institution. In the present case

the Head would be the Principal of the Institution who issued letter of appointment. Again in terms of Rule 5 appointment of Class IV could be

made without referring the posts to the Selection Board. If this is the position, then to say, that Principal was not competent to make appointment,

is an argument which cannot be accepted. Therefore, the order passed by the Director of Education Kashmir, terminating the services of the

appellants, cannot be sustained. The order is quashed. The judgment of the learned Single Judge is set aside. Appellants shall be permitted to

continue their services and they would also be entitled to the benefit of interim direction even in the writ petition. In case they have not continued

during intervening period, they will not be entitled to monetary benefits. Otherwise they will get all consequential benefits. The appellants will get

their salary from the dale they submit their joining report before Principal of the Institution, where they were appointed. This order will apply to the

two appellants only.

Disposed of accordingly.