Muhammad Amin Mir vs Union of India

Through the medium of this writ petition filed under article 226 of the constitution of India, the petitioner, post and position wise a Driver, has

challenged the order of discontinuation issued against him by the Regional Director, Health and Family Welfare, J and K, Srinagar (Respondent

No.3) vide his order bearing No RHOS/41996Esstt/103134dated: 28.01,1997(for short impugned order). The petition came up for final hearing

on 8,04.1999 Respondent appeared through their counsel whereas the petitioner appeared in person and submitted that he belongs to a class of

have not"" and is financially so wreck that he could not keep the commitment of fee with his counsel and expressed his inability to provide

assistance of an Advocate to the court. He canvassed that he has been victimized for extraneous considerations. Undoubtedly appealing events

were brought to the notice of the court but the difficulty is that the court has to pass a verdict on the strength of the pleadings of the parties and it is

not possible for me to determine the questions involved in the writ petition on the basis of a woeful tale revealed by the petitioner in the open court.

He has further submitted that the allegation of tampering with the documents is unfounded and no enquiry whatsoever was conducted into the

matter. Mr. Bhan learned counsel for the respondents submitted that he in possession of a communication bearing No:764/3073/J

dated:3.04.1997 which depicts that no school leaving certificate was issued in favour of the petitioner. He has also submitted that a communication

bearing No: RHOS/419/96/Estt. 108889 dated:19.02.1997 was addressed by the respondent No. 3 to the Deputy commissioner Srinagar to

ascertain the correctness of age certificate of the petitioner and reply from the Deputy Commissioner is awaited, these communications produced

by Mr. Bhan are taken on record. Mr. Bhan has been heard in opposition to the writ petition.

The grounds of challenge have been enumerated in the writ petition and interalia it is contended that the petitioner was initially working as an

orderly/Driver on dailywages basis in Kashmir University. He appeared in an interview conducted by the respondents for the post of staff car

Diver alongwith other nineteen candidates. His excellent performance brought into being his selection by the Selection Committee, constituted for

the purpose, comprising Regional Director, Medical Superintendent SHMS Hospital, Deputy Director RehbariSehat and Deputy Director

Garrages, consequently, a selection letter was issued in his favour being No: RHOS/419/96Estt/ 26869 dated: 02.8.1996 (AnnexureB to the writ

petition) which reads as under: "" No. RHOS/419/96Estt./26S69 Government of India

Regional Office for Health and FW. Neelam Chowk, J and K Srinagar. Dated: 2nd August, 1996.

OFFICE ORDER

Mr.Mohd.Amin Mir S/o Mr. Sona R/o Zakura srinagar has been selected in this office of Regional office for Health and FW Govt. of India

Neelam Chowk, J and K State Srinagar, to thepost of a driver, according to the decision taken by the Selection Board on 30th July 1996. He is

hereby instructed to bring his testimonials experience certificates in original for further verification in this office by the 16th August 1996. He is also

informed that if he fails to respond to this office order by the prescribed date his selection will be treated as cancelled and the chance will be given

to the candidate at Sr.No.2 of the proceedings of the decision taken by the Selection Board in this regard.

Sd/

(Dr.Mrs.Shazia Wafai) Regional Director (HandFW) J and K, Sgr.

Mr.Mohd. Amin Mir,

S/o Mr. Sona Mir,

R/o Zakura, Naseem Bagh, Hazratbal,

Srinagar.

Copy forwarded for information to Shri T.K.Murugan, Dy, Director Administration (M), Dte. General of Health Services, (R.D.Celf) Nirman

Bhawan, New Delhi. This is W.R.T.R.D.Cell approval letter No.A. 12033/7/95 RD Cell Dated 31 Jan. 1996 in this regard.

Sd/

Regional Director (Hand FWF) J and K Srinagar.

In pursuance to annexureB the requisite certificates were produced by the petitioner and the order of appointment was issued in his favour bearing

No:RHOS/410/96/Estt/ 537 dated: 07.08.1996 (annexureC to the writ petition) which is reproduced in verbatim;

GRAM:PARISWASTE NO.RHOS/419/96 Esst./537

Government of India Regional office for Health and FW Neelam Chowk J and K Srinagr Dated: 07.08.1996.

ORDER

The undersigned is pleased to appoint Mr. Amin Mir to the post of a driver on purely temporary and adhoc basis in the pay scale of Rs.

950201150EB251500/ in the Regional Office for Health and Family Welfare Government of India, J and K State, Srinagar w.e.f the forenoon of

7th August 1996 and until further orders.

Sd/

(Dr. (Mrs.) Shazia Wafai) Regional Director (HandFW) J and K Srinagar,

Mr.Mohd Amin Mir,

S/o Mr.Sona Mir,

R/o Zakura, Naseem Bagh, Hazratbal,

Sriangar.

No.RHOS/419/96Estt/Dt.07.08.1996 Copy forwarded for information to

ShriT.K. Murugan, Dy. Director Admn. (M) DGHS {RD Cell) Nirman Bhawan, New Delhi. This is in continuation of this office order

No.RHOS/419/96Estt./26869 dated 02.08.96.

The Pay and Accounts Officer (NICD), 22 Shamnath Marg, New Delhi 110054.

The Accountant General (Admn III), AG JIK Sinagar.

Personal file of Mr. Mohd. Amin Mir.

Sd/~

Regional Director (HandFWF) J and K Srinagar.

In this background the petitioner had to give up the assignment of Kashmir University and joined the respondentdepartment and while expecting

order of regularisation, an order of discontinuation came to be issued against the petitioner which was represented against by him before the

respondents as also before the Chief Minister of the State. These representations are said to have evoked active response on the part of authorities

other than the respondent No. 3 about whom it is stated that he did not pass any orders despite directions from the higher authorities and inaction

on the part of respondent No. 3 constrained the petitioner to invoke the writ jurisdiction of this court, claiming the relief to quash the impugned

order with further prayer to regularise his services.

During the course of arguments Mr. Bhan has opposed the writ petition on two fold grounds, one that appointment of the petitioner is for a

specific period of six months, the other that petitioner has sought appointment on forged documents. Rest of the grounds taken in the counter have

been given up including challenge to the maintainability of the writ petition therefore. I choose to deal with the aforementioned objections only.

Coming to the contention of the respondents that petitioner's appointment is for a period of six months only, it is relevant to refer to the order of

selection as also in the order of appointment issued in favour of the petitioner (AnnexureB and C) reproduced hereinabove and a bare perusal of

these orders reveals that petitioner's appointment is not for six months, thus stand taken by the respondents is belied by order of selection as also

by the order of appointment and the objection fails.

Before I dwell upon the right conferred by selection and appointment on the petitioner, I would like to observe that there ate cases where

appointments are made on adhoc basis to allow entry from backdoor ever ki disregard of Rules and regulation.; and those who lack access to the

authorities do suffer by such mode. At times highly qualified and meritorious aspirants are deprived of such appointments so much so they are not

even considered and this mode of adhoc appointments is deliberately evolved so as to accommodate persons of their own choice to the exclusion

of most deserving, which tantamount to discrimination. Articles 14 and 16 of the constitution postulate equality and strike at arbitrariness of such an

action of the State to ensure fairness of equality of treatment. These articles work as an impediment against monopolising public employment, be it

in the guise of efficiency or any other ground and when mandate of these articles is violated, court cannot afford to he a spectator to the situation

hut has to play its role by displaying indulgence so as to undo the wrong done to a citizen hut here is a case where entry of the petitioner is neither

by favoritism nor discriminatory and fact remains that he has competed for the selection along with nineteen persons and there is no dispute on the

fact that his selection is through competition and not in violation of any rule and regulation, therefore, there is no legal obstacle to protect the

petitioner against the arbitrary action of the respondents but the question which arises is as to how long his continuation is to be protected and the

position is crystalised by the reply filed by the respondents to para4 of the writ petition and the relevant portion of the reply is reproduced

hereunder:

.... The post was to be filled up on adhoc basis for a period of six monthsor till the post is filled on regular basis whichever is earlier...

The objection of the respondents averred in the reply to the effect that the appointment is for a specific period of six months has been dealt with

by me in the preceding para and on reasoning given, the contention is bereft of justification and what remains is ""till the post is filled on regular

basis"" and these words significantly confer a right on the petitioner for his continuation till regular selection is made.

The apex court of the country in case K.S.P. College stopgap lecturers Association Vs. State of Karnataka reported in AIR 1992 SC page

677 interalia passed a direction which reads as under:

Any teacher appointed temporarily shall be continued till the purpose for which has been appointed exhausts or if it is in waiting of regular

selection, then till selection is made."" [Refer page 681 para 6 sub para (3)]

There appears no alternative for me but to fall in line with the judgment of the apex court in view of the stand taken by the respondents in the reply

and I hold that the petitioner has a right to continue till regular appointment is made by the competent authority in which process he too has a right

of consideration if eligible.

Now coming to the second objection, it is amply clear that respondents have discontinued the petitioner not on the ground that his entry is in

contravention of rules but on the allegation that the certificates produced by him are fake and the question which has arisen is whether petitioner

could have been condemned unheard even if adhoc employee. Respondents have produced two communications particulars of which have been

detailed hereinabove in the relevant para and one of the communications is dated: 3.04.1997, which has been written response to communication

dated: 14.02.1997 of respondent No.3 as is evident from the contents of the said letter, whereas the respondent No:3 has discontinued the

petitioner by order dated: 28.01.1997 which makes it manifestly clear that respondent No:3 has initiated the enquiry into the matter on

14.02.1997. Another communication which has been addressed to the Deputy Commissioner is dated 19021997, through which authenticity of

the age certificate filed by the petitioner has been sought. Both these letters have been issued in the month of Feb. 1997 whereas petitioner was

discontinued in the month of Jan. 1997 and apparently respondent No. 3 has initiated the enquiry after the event without providing a reasonable

opportunity defend to the petitioners. Here it is appropriate to refer to a case Director General of Police and others Vs. Mrityunjoy Sarkar and

others reported in AIR 1997 page 249. In this case fictitious record was produced to secure employment, consequent upon which their services

were terminated. While adjudicating upon the matter the apex court of the country observed:

3... It would thus be clear that the foundation for discharge is production of fake list of persons from employment exchange for recruitment as

Armed Reserved Constables. If that is accepted, then it would cause a stigma on the respondents for future recruitment as they have produced

fictitious record to secure employment. Principles of natural justice require that they should be given reasonable opportunity of representation in the

enquiry to be conducted and appropriate orders with reasons in support therefore need to be passed. It is settled legal position and the said

procedure has not been followed. Under these circumstances High Court had not Committed any error in dismissing the appeal...

The respondents have stated in unambiguous terms that the discontinuation of the petitioner has originated from production of a fake certificate,

obviously the order impugned has been passed as measure of punishment but without any enquiry which sufficiently depicts that the petitioner has

been treated unfairly, arbitrarily and in violation of principles of natural justice and such foundation of discontinuation having the effect of causing a

stigma on the petitioner for further recruitment, moreso, the respondents having utterly failed to show that the power was exercised honestly arid in.

good faith, therefore, they are rendered guilty of violating the mandate of Articles 14 and 16 of the Constitution notwithstanding the fact that the

nature of basic appointment of the petitioner is adhoc. 1 hold so on the strength of judicial pronouncements handed down by the apex court in the

aforementioned case and in case Babu Lal Vs. State of Haryana (AIR 1991 SC page 1310) besides Nepal Singh Vs. State of U.P. reported in

AIR 1985 SC page 84 at page 86 para. 7 reproduced hereunder:

.. when a Government servant satisfied the court prima facie that an order terminating his services violates articles 14 and 16 the competent

authority must discharge the burden of showing that the power to terminate the services was exercised honestly and in good faith on valid

considerations, fairly and without discrimination.

Now coming to the claim of regularisation advanced by the petitioner through the writ petition coupled with the submissions of the petitioner

made at the bar that policy evolved by respondent No. 1 is that such adhoc employees who are recruited through selection process are entitled to

regularisation and the petitioner claims the same benefits. In this behalf it is apt to refer to the appointment order in which words until further orders

have been used, which include something more in addition to mere continuation of the petitioner on adhoc basis which can even suggest intention of

the respondents to regularise his service. This inference is strengthen by reply of respondents to para12(c) in which para petitioner has advanced a

claim for regularisation and reply of the respondents is reproduced hereunder

..It is submitted that the petitioner has triad to get his appointment on the basis of forged documents furnished to the department of respondents...

It is further submitted that in the appointment order, it was made clear that any information found incorrect, the services of appointed shall be

terminated at any time...

A Conjoint reading of words 'until further order' with the reply of respondents can lead to the conclusion that the petitioner has been denied

regularisation because of allegation of tampering with the documents and not because his appointment is adhoc in nature What is relevant to notice

is that the respondents have hot urged that any particular academic qualification is required to be possessed by the petitioner which he lacks nor is

it stand of the respondents that the petitioner does not have the requisite driving licence, had it been so, petitioner's appointment could be said to he

per se illegal but stand of the respondents creates a doubt about the age of the petitioner, which apprehension is evident from the communication

dated 19.02.1997 addressed to the Deputy Commissioner but no enquiry has been conducted into the matter and the communications put into

service by the respondent No3 coupled with the sequences of the facts the inference is irritable that the stand taken is merely a camouflage to

dislodge the petitioner. The action of the respondent No.3 being penal in nature and having civil consequences could not have been taken unless an

enquiry in accordance with the procedure established by law was conducted and nothing prevented the respondent No.3 from embarking upon

this issue before passing the impugned order,

It is apposite to notice here that the apex court of the country while dealing with the claim of a terminated adhoc employee in case Babu Lal

Vs. State of Haryana reported in AIR 1991 SC page 1310 did not only quash the order of his termination but also made an observation for

according consideration for regularisation to the employee in the light of the norms laid down in the executive instructions. Considering the facts and

the circumstances of the case in hand I find myself duty bound to adhere to the mandate of the judgment of the apex court to require the

respondents to consider the claim for regularisation of the petitioner in accordance with the policy prevalent.

For the aforementioned reasons this writ petition succeeds. The petitioner shall be reinstated forthwith in service with all consequential benefits

including emoluments treating the order impugned as nonset and the petitioner shall be treated in service without any interruption. He shall be

considered for regularization in accordance with the policy prevalent but it will be open to the respondents to initiate proceedings against the

petitioner in accordance with law in respect of allegations leveled against him in the counter and this judgment shall not be an impediment to the

respondents in taking action in accordance with the procedure established by law, if they so choose.

No order as to costs.