Manzoor Ahmad Bhat vs District Judge, Srinagar and Another

Mohammad Yaqoob Mir, J.—Vide order No. 2720-24/DJS dated 5.12.1996, petitioner has been appointed temporarily as Junior

Assistant in the grade of Rs. 950-1500. The said order is reproduce as under:

Consequent upon suspension of Sh. Ghulam Nabi Bhat, Typist of this office, the following transfer and appointment of clerks is hereby made in

the interest of administration:

Mst. Mah Jabeen Akhter, copiest in the court of Chief Judicial Magistrate Srinagar, who being the only type knowing hand, at the Head-quarter

is transferred to the court of District and Sessions Judge Srinagar in her own pay and grade in place of Sh. Ghulam Nabi Bhat (Typist under

suspension).

Manzoor Ahmad Bhat S/o Ghulam Qadir Bhat R/o Dhobi Mohalla Batmaloo, Srinagar, who has passed his B.Sc. Final examination is

temporarily appointed as Jr. Asstt., in the grade of 950-1509 against the resultant vacancy caused and is posted as Copiest in the court of Chief

Judicial Magistrate, Srinagar.

This order is issued subject to confirmation of Hon'ble Chief Justice of J & K High Court.

Sd/-

District & Sessions Judge Srinagar

Prior to the issuance of said order, respondent No. 2 Secretary to Hon'ble the Chief Justice seems to have issued letter No. 6603/SY dated

24.10.1996 where-under all the Principal and District & Sessions Judges are stated to have been informed that post of Junior. Assistants as have

been created in the Subordinate Courts, have to be referred to Selection Committee and posts available for promotion of Junior Assistants are also

now to be selected by the said Committee. Accordingly, directions have been issued not to fill any post of Junior Assistant falling vacant in the

Districts. Further-more information has been sought as to how many posts are vacant.

Petitioner noticing the position of above referred letter apprehended his exclusion, so filed the instant petition on 6.5.1997, where-under the said

communication dated 24.10.1996 issued by respondent No. 2 has been sought to be quashed. Further-more, it has been prayed that respondent

No. 2 shall be commanded to desist from constituting any Selection Committee or from initiating any selection process for staff created by the

Government in each districts by superseding the Principal District & Sessions Judges concerned and further to regulate the service of petitioner

against one of the post available for recruitment in District Srinagar.

Vide interim order dated 7.5.1997 while admitting the petition for hearing, following direction has been passed:

Issue notice to the respondents returnable within four weeks time to file detailed counter.

Issue notice in the CMP also returnable within the same period. In the meanwhile, subject to objections of other side, respondents are directed not

to dis-continue services of the petitioner with the further direction to respondent No. 2 not to proceed ahead with the selection process till

objections are filed and considered.

Subsequently on motion of the other side, direction above referred, has been modified vide order dated 9. 2.1998. The operative part of the

said order reads as under:

Meanwhile, counsel for the parties agree to modify the interim order dated 7.5.1997. Accordingly, with consent of the learned counsel for parties,

the order is modified and it is directed that the petitioner shall be allowed to continue in service on the post held by him till the petition is finally

disposed of. Respondents shall be free to proceed ahead with the selection process for rest of the posts.

Petitioner originally was temporarily appointed as against the vacancy which arose in view of suspension of the service of one Ghulam Nabi

Bhat, who subsequently has been re-instated by respondent No. 1 (District Judge) vide order dated 22.7.1997. The said order is quoted herein.

Shri Ghulam Nabi Bhat Typist of this office who was placed under suspension vide this office No. 2697/DJS dated 4.12.1996 is hereby re-

instated with immediate effect. His period of suspension is treated as on leave whatever kind is due to him under rules. He is, however warned to

remain cautious and careful while performing his official duties.

The arrangement made vide this office No. 2720-24/DJS dated 5.12.96 pursuant to the suspension of Mr. Ghulam Nabi Bhat has become subject

matter of writ petition as SWP 2144/97 titled Manzoor Ahmed Bhat v. District Judge, Srinagar and another wherein the Hon'ble High Court has

been pleased to direct as under:

In the meanwhile, subject to objections of other side, respondents are directed not to dis-continue services of the petitioner with the further

direction to respondent No. 2 not to proceed ahead with the selection process till objections are filed and considered.

In view of the order of the Hon'ble High Court this office cannot at this stage dis-continue the services of the appointee Mr Manzoor Ahmed Bhat.

Therefore, the matter is referred to Secretary to Hon'ble the Chief Justice for appropriate orders and instructions including the posting of Mr.

Ghulam Nabi Bhat.

Learned counsel for the petitioner would contend that the order of appointment favouring petitioner is un-conditional and the appointment is

made by District Judge who is appointing authority. There was no requirement of confirmation of the order because order is valid and effective. In

any case petitioner's appointment cannot be revoked. Communication dated 24.10.1996 issued by the respondent No. 2 is not in-consonance

with the law, therefore, same shall not stand in the way of the petitioner's appointment and continuation thereof. In support, he has relied on the

judgment rendered by the Full Bench of this Court in case titled Ghulam Qadir Sheikh v. State of J&K, reported in 2001 SLJ 133.

Contention of respondent No. 2 as projected in the reply is that petitioner was appointed by way of arrangement in view of suspension of one

Ghulam Nabi Bhat, when the said Ghulam Nabi Bhat has been reinstated, the arrangement would automatically come to an end. The appointment

of the petitioner is not on the basis of any selection process and in case it would have been the clear vacancy then everybody had right to compete.

Post has not been advertised, simply by way of arrangement petitioner has been appointed as is also inferable from the language of the

appointment order itself. It is also projected that as against available vacant post and also the posts which have been created by the Government,

the proper Selection Committee has been constituted for selection by Hon'ble the Chief Justice.

The position, District Judge being the appointing authority of the ministerial officer, is not open to question as the same is ordained by Section

30(1) of the Civil Courts Act and same position has been maintained by the Full Bench of this court in case titled Ghulam Qadir Sheikh v. High

Court of J&K, but at the same time it has been held that powers of appointment of ministerial officer vested in District Judge can be regulated by

the Chief Justice by exercising the powers of control under Sub Section 4 of Section 30 of the Act. In the referred judgement notification No. 87

dated 28.03.1968 has been noticed in terms whereof rules have been framed u/s 30 of the Civil Courts Act. Rule 4 is relevant to be quoted.

(4) The control to be exercised by the High Court under sub Section (4) of Section 30 of the Act shall be exercised through the Chief Justice"".

The observation of the Division Bench in Ghulam Qadir Sheikh's case has been quoted with approval as under:

It has again been rightly observed that being the controlling authority the High Court is not powerless to quash and recall the appointments, if the

appointments have been made by the District Judge in contravention of the policy and circular

It has also been held that where the statue or rules does not operate the position can be taken care of by executive orders. Para 23 is relevant

to be quoted.

Therefore-mentioned decisions indicate that executive powers can be exercised by the executive instructions where the rules do not exist and if full

effect is given to the word 'control', then the Hon'ble Chief Justice of this Court is competent to regulate the exercise of power which is expressly

not conferred on any other functionary. It is only the power of appointment which is conferred on the District Judge. As to how these appointments

are to be made or which authority is to issue notification inviting applications or who would constitute a selection committee or what would be the

procedure to be adopted by the selection committee are all matters which would fall under the word 'control' and this word 'control' which is

comprehensive in nature would include as indicated above the power to regulate the procedure to be followed while making the appointments.

In view of the ratio of the judgment of Full Bench, prayer for quashing the communication dated 24.10.1996 has to be rejected. Vs. Any order

of the District Judge u/s 30 of the Civil Courts Act is subject to the control of the High Court. The High Court has conferred the powers to Hon'ble

the Chief Justice, so it is the Hon'ble Chief justice who has domain to constitute Committee and to provide mode and methods for recruitment and

has power to revoke or cancel any appointment made by the District Judge.

Now the question, what will happen to the petitioner who admittedly has been appointed in the year 1996 and thereafter his continuation till

date is ensured by the interim order passed by this Court on 7.5.1997 and modified on 9.2.1998. It means petitioner is discharging the function of

Junior Assistant for last more than 14 years and by now he must have crossed the age bar. The order of appointment as referred to above, if

disturbed, will subject him to untold miseries and his family will also become victim.

The order of appointment, on the face of it, does not contain any stipulation about continuation of the petitioner until re-instatement of

suspended employee Ghulam Nabi Bhat. Though in essence, it is against the said vacancy he has been adjusted by now due to efflux of time

petitioner has been working against a clear vacancy. The order of appointment from 5.12.1996 till filing of the petition i.e. 6.5.1997 has not been

cancelled/revoked and the position of the order thereafter has remained un-disturbed may be in view of the interim direction dated 7.5.1997 and

9.2.1998 because in the interim order dated 9.2.1998 it has been made clear that the petitioner shall be allowed to continue in service on the post

held by him till the petition is finally disposed of. Post as was held by the petitioner at that time was of Junior Assistant in the court of Chief Judicial

Magistrate, Srinagar, whereas the post against which vacancy arose in view of suspension of Ghulam Nabi Bhat was in the court of District Judge,

Srinagar. What would emerge there from is that the petitioner till date has been working and functioning against the clear vacancy and keeping in

view the language of the order of appointment, his service book has also been prepared right in the year 1996 itself, it would indicate that his

appointment was not intended to be by way of interim arrangement because in case he would have been engaged by way of arrangement for

limited period then service book would not have been prepared. Photocopy of service book reveals that at the time of entry in the service on

7.12.1996, the District Judge has prepared the service book and signed the same. Whether the order of appointment was inconsonance with the

rules/circulars/orders should have been taken care of right in the beginning. When the position of the order of appointment has not been disturbed,

it would be too harsh at this stage to disturb same.

Keeping in view all aspects of the matter coupled with the humanitarian aspect of the matter, i.e. service of the petitioner for last more than 14

years without noticing anything adverse entitle the petitioner for continuation in accordance with the terms of order of the appointment.

Petitioner has been appointed by the competent authority (respondent No. 1-District Judge) who is the appointing authority. The order of

appointment in favour of the petitioner till date neither revoked nor challenged; therefore, position

of the petitioner as Junior Assistant and continuation thereof for last more than 14 years in the exceptional circumstances is not open for

interference unless otherwise permissible in due course of law. Consequential benefits to which petitioner shall be entitled in accordance with rules

shall be considered for release thereof.

Petition accordingly, succeeds, as such shall stand disposed of along with connected CMP.