Mohd.Yousuf vs State of J & K

T.S. Doabia, J.

1.""He that takes the procedural sword, shall perish with that sword."" The aforesaid words of Justice Frankfurter in Vitarelli v. Seaton, 1959(3)

Law Ed. 2d 1012, though said in a different context would apply to the petitioners also. They do not want the double edged procedural sword to

be used against them. They came to be appointed without following due procedure but are claiming that in the matter of termination, procedural

safeguards should be followed.

On the last date of retirement, the then Director Health Services issued letter of appointment in favour of the petitioner and 57 other persons.

Some of them were appointed on temporary basis; others came to be appointed on stopgap basis for a period of sixty days. This happened on

31.3.1998. Next day i.e. 1.4.1998 the new incumbent to the office of Director Health Services issued a telegram. This was to the effect that all

appointment orders issued on 31.3.1998 are to be kept in abeyance. It was further indicated that this would be subject to the final decision which

may be taken by the State Government. Some of the appointees approached this Court immediately after order dated 1.4.1998 was passed.

Interim orders came to be issued by this Court.

The further fact is that on 12.5.1998 the Commissioner/Secretary to Govt. Health and Medical Education department passed further order. The

fact that the then Director Health Services had made the appointment of 58 candidates to the various posts in nongazetted cadre and class IV

posts on the eve of his retirement was taken note of. It was observed that as these appointments were made without following due procedure

which was required to be followed in the matter of making appointment to public service, the letters of appointment issued by the then Director

Health Services on the eve of his retirement were cancelled with immediate effect. The orders which were ordered to be kept in abeyance on

1.4.1998 were given a final shape. The net result was that the orders of appointment were cancelled. The names of the employees who were likely

to be affected by this order were mentioned in the schedule appended to the order passed on 12.5.1998.

When this order was passed, some further writ petitions came to be filed in this Court. The challenge to the order passed on 1.4.1998 and

12.5.1998 is basically on the ground that before passing the order in question, the rules of natural justice were not complied with. It is urged that in

the case of those petitioners where the appointment was made on temporary basis came to be governed by the Civil Service Regulations and in

case their services were to be brought to an end, then mandatory requirements of Section 126 of the Jammu and Kashmir Constitution and Article

311 of the Constitution of India were required to be complied with. It is further urged that none of the petitioners have been attributed any conduct

which may spell out that they were parties to any fraud. The fact that in the order dated 12.5.1998, there is no recital to the effect that the

petitioners exhibited any conduct or misconduct which led the orders of appointment being issued in their favour. It is urged that in the absence of

any such conclusion recorded in the order dated 12.5.1998 the services of the petitioners could not be brought to an end. It is also urged that

inspite of the fact that order dated 1.4.1998 was issued, the Director Health Services Jammu permitted some of the appointees to join the services,

therefore, a vested right came into existence. To summarize the arguments put across by the petitioners in the writ petitions are :

(i) that those of the appointees who came to be appointed on temporary basis came to be governed by the Civil Service Regulations and in case,

their services were to be brought to an end, then a show cause notice followed by procedure indicated in the statutory provisions noticed above

should have been followed.

(ii) that in the absence of any assertions attributing fraud or any other malpractice having been adopted by the appointees they could not be

penalised by putting an end to their service tenure.

(iii) that no action has been taken against the Director who had made the appointments and he has been given all retirement benefits. Thus, it is

urged that as no mala fide has been attributed to the official who issued the letter of appointment and, therefore, the petitioner's services could not

be brought to an end.

(iv) it is also urged that the Head of the Department was the Appointing Authority and the power exercised by him could not be taken exception

to.

In addition to the above common arguments in writ petition(s) 826/98, it is submitted that same Officer who had issued letter of appointment in

case of the petitioners has issued letter of appointment earlier also. One such letter is said to have been issued on 12.1.1998. It is urged that when

the persons who were given appointment in January 1998 have been permitted to continue in service then there is no justification to snap the

relationship of master and servant so far as the petitioners are concerned. At this stage it would be apt to notice the orders passed in these cases.

In one category i.e. category I, the appointment has been described as Regular temporary Appointment. In other set of cases i.e. category II the

appointment is for a period of sixty days. These orders are noticed as under :

CategoryI

ORDER

Sh. Mohd. Yousuf S/Sh. Ghulam Qadir R/o Gool District Udhampur is hereby appointed as Class IV on regular temporary basis in the pay scale

of Rs. 25503200 plus usual allowances as admissible under rules against the available vacancy in District Udhampur.

The above named candidate will report to the Chief Medical Officer, Udhampur who will allow him to join only after verification of original

certificates as required under rules for the first appointment.

CategoryII

ORDER

The following candidates are hereby appointed as Female Multipurpose Health Workers in the pay scale of Rs. 30504590 plus usual allowances

as admissible under rules on Stopgap basis for a period of 60 days and adjusted against available vacancies in the district.

Miss Mukesh Kumari

D/o Sh. Om Parkash R/o

Sewa Jagir Rajouri

xxxxxxxxxxxxxxx

xxxxxxxxxxxxxxx

xxxxxxxxxxxxxxx

Miss Satya Devi

D/o Sh. Basant Singh

R/o Kalakote Rajouri.

The above named candidates will report to the Chief Medical Officer, Rajouri who will adjust them in the District Rajouri against the available

vacancies in the District after verification of the requisite certificates required under rules.

Respondents have filed objections in some of the petitions.

An oral prayer has been made that whatever has been stated in one case, be adopted in other petitions also. It is stated that the argument which

is being raised is common to all the petitions. It is urged that the letter of appointments which were issued by the then Director Health Services

were issued without issuing any advertisement notice. It is in these circumstances submitted that these orders are in breach of Articles 14 and 16 of

the Constitution. As the public at large were not notified regarding the vacancies and a policy of pick and choose had been adopted, it is bad in the

eyes of law. It is thus stated that the procedure adopted by the then Director being in breach of equality Clause as contained in the Constitution

was rightly set at naught by passing order dated 12.5.1998.

In addition to the above pleas, it is stated that when the appointments made on 31.3.1998 came to the notice of the Minister concerned he took

cognizance of the matter and issued directions that the order passed by the Director be kept in abeyance. It was in pursuance of that order which

was interim in nature, order dated 1.4.1998 came to be issued. It is further urged that some of the petitioners were given appointment only for a

period of sixty days and their tenure has come to an end and, therefore, no vested right exists in their favour. It is also the stand of the State that the

conduct of the former Director Health Services is being looked into and the matter has been referred to the Vigilance Department. Such is the

positive stand taken in SWP No. 826/98. It is stated that the Vigilance Organisation Jammu has been asked to hold a detailed investigation visavis

conduct of the former Director Health Services.

The short question which arises for determination in these petitions is as to whether a writ can be issued in favour of the petitioners to let them

continue in service when their appointments came to be made without issuing any public notice.

It is settled law that all appointments to public services are supposed to be made after issuing a public notice. This is essential so that the public

at large gets an opportunity to take part in the process of selection and compete with others. This procedure was definitely not followed by the

Director Health Services who sitting in his office issued letters of appointment to all those who approached him. If such a procedure is adopted

then this is liable to be challenged at the instance of an ordinary citizen. The process of appointment without issuing advertisement would clearly be

in breach of Articles 14 and 16 of the Constitution of India. Reference in this regard be made to the decision reported as B.S. Minhas v. Indian

Statistical Institute, AIR 1985 SC 363. In Ashwani Kumar v. State of Haryana, AIR 1997 SC 1628 : 1997(1) S.C.T. 573, the initial entry was

unauthorised. The recruitment procedure was not followed. This resulted in clear violation of Articles 14 and 16 of the Constitution. There was

regularisation also. It was held that regularisation and confirmation could not be relied on as a shield to cover an initially void action. Again where

the selection process was tainted with illegality then the mere fact that they had received training was held to be of no consequence in Satpal v.

State of Haryana, 1995 Supp.(1) SCC 206 : 1996(4) SCT 621 (P&H). The purpose of making appointments through advertising is to ensure

equality of opportunity to all eligible candidates. It enables all eligible candidates to submit their applications and compete. This has not happened in

this case.

The fact that even in cases (where) advertisement is issued but appointments offered are more than advertised even on these cases

appointment beyond the advertised number have been held to be bad. The case law on the subject has been aptly noticed by J.L. Gupta, J. of the

Punjab and Haryana High Court in the decision reported as Smt. Sukhwant Kaur v. State of Punjab, 1997(3) SCT 351. Para 5 of the Judgment is

relevant and is being noticed below :

The purpose of advertising the posts is primarily to ensure equality of opportunity to the eligible candidates. It is intended to enable them to submit

their applications so as to be able to compete. It is not unlikely that certain persons who had appeared in the examination may be awaiting their

results. There may be many others who may not have completed the prescribed experience of three years by the last date of submission of

applications. If an authority fills up three times the number of advertised posts at the time of one selection, it obviously shuts out the doors to those

who may become eligible subsequently. It is on account of this reason that the Courts have repeatedly taken the view that the department should

not fill up more than the advertised posts. The rule in this behalf was enunciated by Their Lordships of the Supreme Court in Hoshiar Singh v. The

State of Haryana, JT 1993(5) SC 63 : 1996(3) SCT 29. It was reiterated in the case of State of Bihar and another v. Madan Mohan Singh,

1993(5) SLR 601 : 1994(1) S.C.T. 530. It was on the basis of these decisions that a Full Bench of this Court in Bijender Singh etc. v. The State

of Haryana etc, 1994(3) PLR 1 : 1997(1) SCT 756 (P&H)(DB) had inter alia observed that ""a wholesale departure from the number of posts

advertised by the Board is not at all permissible"". It is no doubt true that in Prem Singh v. Haryana State Electricity Board, 1996(3) RSJ 98 :

1996(3) S.C.T. 563, it was observed that ""it would not be just and equitable to invalidate all the appointments made against posts in excess of 62"".

However, even in this case it was held that the Electricity Board ""was not justified in making more than 62 appointments pursuant to the

advertisement published on 2.11.1991 and the selection process which followed thereafter."" Consequently, there appears to be no departure from

the rule enunciated by the Apex Court in the cases of Hoshiar Singh and Madan Singh (supra). In fact the rule appears to have been reiterated in

Ashok Kumar v. The Chairman Banking Service Recruitment Board, 1996(1) SCT 660. It was held that the ""recruitment of the candidates in

excess of the notified vacancies is a denial and deprivation of the Constitution right under Article 14 read with Article 16(1) of the Constitution.

The position in the present case being similar, the action is clearly violative of Articles 14 and 16 of the Constitution.

Similar view has been expressed by a Division Bench of Punjab and Haryana High Court in case reported as >Balwant Singh Kataria v. State

of Haryana, 1997(3) SCT 618. Thus a case where no advertisement is issued cannot be placed at a pedestal higher than where advertisement is

issued for specified number of post but vacancies filled are much more.

There is another aspect of the matter. In the cases which fell under the category I there was clear requirement to the effect that all the

candidates would have to report to Chief Medical Officer Udhampur who would allow them to join only after verification of original certificates as

required under rule when appointment is made for the first time. As to at what point of time this requirement was fulfilled is not apparent. Merely

because these petitioners submitted joining report on a date earlier to 1.4.1999 would not lead to the conclusion that they came to be legally

appointed. As to how order dated 31.3.1998 came to be communicated to the petitioners is also not clear. Whether it was given by hand or post,

is again a matter which indicates that the officer who has retired was in hurry to see that his appointees join office. However, this matter is not being

commented any further and is left as it is.

It is as such held that the requirement to issue public notice is a basic procedural requirement which cannot be dispensed with. If above be the

position then issuing of a writ in this case would amount to bringing into existence a situation which in itself would be contrary to Articles 14 and 16

of the Constitution. It would lead to resusication of situation which is in itself illegal. Such a course would not be available to the writ Court. See the

decision reported as Faridabad CT Scan Centre v. D.G. Health Services, 1997(7) SCC 752 : 1997(4) S.C.T. 463, wherein it was said :

Wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other

persons and, therefore, there will be discrimination against others if correct orders are passed against them.

See also decision of the Supreme Court reported as Gadde Venkateswara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828; where at

page 837 it was observed :

In those circumstances was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963

? If the High Court had quashed the said order it would have restored an illegal order it would have given the Health Centre to a village contrary to

the valid resolution passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extraordinary

discretionary power in the circumstances of the case.

As in these cases appointment orders were issued without issuing any public notice, therefore, the appointment being in utter breach of

Constitutional provisions cannot be held to be valid and no writ can be issued with a view to implement an order which in itself is contrary to law.

In view of the above situation, the other argument that there was breach of Article 311 loses significance. It may further be seen that in some of

the cases i.e. category II appointments were made only for 60 days. That term has come to an end. In these cases for this additional reason also

the writ petitioners have no right to continue in service.

Learned counsel for the petitioners submits that for the period, the petitioners have worked, they be paid their salary. This limited prayer is

allowed. The respondentauthorities would release the salary of the petitioners for the period they have actually worked. The State Government,

however, would be at liberty and as a matter of fact recover the salary so paid to the petitioners from the officer who issued the appointment

letters.

The State Government would also examine as to whether other appointments which were similarly made without issuing advertisement notice

are good or bad. Assertion made in SWP No. 826 of 1998 be taken note of. A decision in this regard be taken within a period of two months.

This period would begin from the date copy of order is made available to the respondentauthorities. Registry shall send copy of this order to the

respondentauthorities. Compliance report in this regard be submitted to Registrar Judicial.

This order deals with writ petition indicated in the schedule appended to this order. The schedule makes mention of two categories. Category I

deals with these appointments which were made on regular temporary basis. Category II deals with those cases where appointment was for a

period of 60 days. In view of the above discussion these petitions are dismissed.

Photostat copy of the order be placed on each of the files.

Petitions dismissed.