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Judgment
Pramod Kohli, J.—These petitions involve common questions of fact and law. There are two sets of petitions. Petitioners in Writ petitions,
SWP Nos. 3059/2001; 250/2002; 1129/2002; 2361/2001; 495/2003; 2014/2002; 104/2002; and 1048/2002 have challenged the appointment
of the private respondents besides they are seeking their own consideration for appointment. Petitioners in writ petitions SWP Nos. 271/2002;
1140/2002; 1031/2002; 403/2002; 1040/2002 and 276/2002 are the appointees who are seeking their regularization.
Resume of the facts of each case are being noticed.
SWP No. 2361/2001 (Nighat Qureshi v. State and Ors.).
Petitioners claim to be qualified for the post of Conductress in Social Welfare Department. They applied for the same to the official respondents
for their appointment/engagement. Petitioner No. 2 was engaged in leave arrangement for some time. Respondents No. 5 & 6 who are said to be
relatives of respondents No. 3 & 4 were appointed as Conductress vide orders dated 30-5-2001 and 31-5-2001 respectively pursuant to
approval of their appointment by the then Minister for Social Welfare. Official respondents as also the private respondents have filed their separate
replies to the petition. As far as the official respondents are concerned they have refused to defend the appointment of respondents No. 5 & 6,
which is stated to be illegal and made by in-competent person. It is further stated that the posts in question are required to be filled up by
recruitment by the competent selection committee and not by respondents No. 3 & 4. Private respondents claim their regularization in terms of
Government Order No. 1285/01 dated 6-11-2001. It is claimed that they having been appointed by the Minister, who was competent to make
such appointments no exception can be taken to their appointment and continuance as it amounts to exploitation of un-employed persons, who are
in position for the last few years.
SWP No. 2014/2002 (Manju and Ors. v. State and Ors.)
Petitioners herein were engaged as part time Conductresses vide order dated 23-12-2000 on consolidated wages of Rs. 2500/- per month. On
being so appointed they requested for their regularization. Respondents did not pass any order on their representation and on the other hand
appointed respondents No. 4 to 26 as conductresses in Social Welfare Department. The main challenge to their appointment is the same as having
been made without inviting applications and adopting the procedure provided under law. In addition to this, the appointment of respondents No. 8
& 10 is also challenged on the ground of favoritism and nepotism. Respondent No. 6 Nifat Ara is alleged to be real sister of one Salim Beigh, who
was working as Tehsil Social Welfare Officer at the relevant time. Similarly respondent No. 10 is alleged to be son of one Tulsi Dass, Head
Assistant working in the said office. Other respondents are also stated to be relatives of the officials of the department.
Official respondents in their reply specifically, admitted that the appointments of private respondents having been made by in-competent persons
who had no authority to make such appointments. It is further stated that the posts are required to be referred to the Recruitment Board for
selection.
SWP No. 104/2002 (Ift Ara Begum and Ors. v. State and Ors.)
Appointment of respondents No. 5 to 8 is challenged on the same grounds as in SWP No. 495/2003 and 3055/2001 as these persons are
respondents in those petitions also. Official respondents have also taken the same stand as in the afore-said two petitions.
SWP No. 495/2003 (Jagbir Kour and Ors. v. State and Ors.)
Private respondents in SWP No. 2014/2000 are also respondents No. 5 to 27 in this petition whose appointment is challenged on the same
ground. In addition to this petitioners, who were engaged in leave arrangement for 30 days vide order dated 7-7-1995 continued to be so upto
April, 2002 and there-after vide order dated 11-6-2001 engaged as part time conductress on consolidated wages of Rs 2500/- per month for 10
months vide order No. 481-82. He is seeking his own regularization also.
In the reply filed by the official respondents, the appointment of the petitioners as also of the private respondents is stated to be illegal having
been made by the in-competent person without the knowledge and approval of the competent authority. It is further mentioned that the matter has
been referred to Vigilance Organization, Jammu and is under investigation. The officials who made such appointments have been attached for the
dereliction of duty.
SWP No. 1129/2002 (Mansha Begum v. State)
Appointment of the private respondents is assailed being violative of Articles 14 & 16. It is alleged that no advertisement was issued and the
appointment is through back door. Respondent No. 8 is daughter of one Sat Pal, Section Officer in the office of Deputy Director, Social Welfare.
It is further alleged that she belongs to District Jammu, however appointed in District Rajouri contrary to rules. The post is District cadre post and
is required to be filled up only from the same District. It is also alleged that after being appointed in District Rajouri she was transferred to District
Jammu illegally. In respect to respondent No. 5, it is alleged that the said respondent is working in the Government and is also a student in
Government Degree College, Rajouri. Certificate of his attendance in the College as a regular student has also been placed on record as Annexure
G"".
Official respondents have filed a reply stating therein that the posts given to the private respondents are Class IV and Class III posts. As far as
Class III posts are concerned, the same are required to be filled up by the Recruitment Board in accordance with law. Regarding Class IV posts, it
is stated that under Govt order No. 1786-GAD of 1997 dated 11-11-1997 the posts were required to be filled up by the concerned Head of the
Department. However, subsequently vide Govt order No. 688-GAD of 1999 dated 14-6-1999 powers of the Head of the Departments were
withdrawn. The Government issued Circular No. 36-GAD of 2001 dated 31-12-2001 whereby directions were issued to all the Departments to
give details of Class IV posts in their respective departments and vacancies be referred to the concerned Deputy Commissioner for appointment
under SRO 43 of 1994. It is further stated that the Deputy Director, Social Welfare is not competent to make appointments. All appointments are
dehors the rules. The appointees are not entitled to regularization. Respondents have also placed on record Govt Order No. 1697-GAD of 2001
dated 20-12-2001 whereby action is taken against two officers for making back door appointments. The issue was also raised in the legislative
assembly and the Minister for Social Welfare assured the legislature to cancel all the illegal appointments made in the Social Welfare Department.
Pursuant to such assurance Annexure R-4 was issued asking the Director Social Welfare to cancel all illegal appointments made in the Social
Welfare Department.
SWP No. 1048/2002 (Mohd Latif v. State and Ors.)
Appointment of one Mohd Farooq who is respondent No. 5 in this petition has been challenged having been made without adopting due
course of law. Said respondent is also respondent in SWP No. 1129/2002. Official respondents have filed the same reply as in SWP No.
1129/2002.
SWP No. 3059/2001 (Vishal Kumar v. State and Ors.)
Private respondents in SWP No. 495/2003 are also respondents in this case and their engagement has been challenged on the same ground.
The official respondents have also taken the same stand as in SWP No. 495/2003.
SWP No. 271/2002 (Gurmeet Kour v. State and Ors.)
In this petition the petitioner claims to be M.A., B.Ed and trained Stenographer. She was engaged as orderly for 89 days on 25-10-1999 by
respondent No. 3. This engagement was extended vide order dated 20-1-2000. A direction was issued by respondent No. 3 to prepare her
service record. Respondent No. 2 Director, Social Welfare vide letter dated 9-10-2001 regularized her appointment. It is stated in the petition that
despite regularization another list was forwarded by respondent No. 3 to respondent No. 2 for regularization of the petitioner and some other
employees who are engaged on adhoc/temporary basis. The Director, Social Welfare vide impugned order dated 31-1-2002 directed reference of
all the posts including the post held by the petitioner to Deputy commissioner for appointment under SRO No. 43 of 1994. It is this order which is
subject matter of challenge in the present petition.
Official respondents have resisted the claim of the petitioner on the ground that the Deputy Director was not competent to make appointments.
Similarly, it is stated that the Director was not competent to regularize the back door entry. Petitioner has no right to seek regularization.
SWP No. 1140/2002 (Kishwar Sultana v. State and Ors.).
Petitioners in this petition were appointed as Conductresses on 31-5-2001 and 30-5-2001 respectively. They approached this Court on the
apprehension of being removed pursuant to letter dated 8-4-2002 whereby the Director, Social Welfare was asked to cancel all back door
appointments made in the Social Welfare Department. Petitioners are seeking their regularization under Govt Order No. 1285 of 2001 dated 6-
11-2001. It is also stated that in view of the judgment passed in SWP No. 250/2002 their services are to be regularized. The official respondents
have stated that the appointment of these petitioners were in violation of the rules.
SWP No. 1031/2002 (Bir Singh v. State and Ors.)
Petitioner No. 1 in this case was appointed as orderly for 30 days vide order dated 14-6-1999. The appointment was extended vide orders
dated 14-7-1999, 17-8-1999 and 8-10-1999. The final extension was till the selection is made. Similarly petitioner No. 2 was appointed in
District Udhampur vide order dated 29-11-1999 for 60 days or till the selection is made. This was further extended on 29-1-2000 till further
orders. These petitioners are seeking their regularization in terms of Government Order No. 1285/2001 dated 6-11-2001.
In the reply to the writ petition filed by the official respondents, it is stated that at the time of appointment of the petitioners there was no
vacancy of orderly. The appointments have been made by in-competent persons and the salaries of the appointees were ordered to be drawn
against the posts of Junior Assistants. Application of Govt Order No. 1285 of 2001 dated 6-11-2001 is denied.
SWP No. 403/2000 (Sham Lal v. State and Ors.)
Petitioners in this case were appointed as conductress in the social welfare department. Some of them have been regularized. However,
apprehending their removal they approached this Court. Petitioners are also seeking their regularization. The official respondents have taken the
same stand as in SWP No. 495/2003.
WP No. 276/2002 (Suresh Kumar v. State and Ors.)
Petitioners were appointed in Social Welfare Department. Their case was sent to the Director, Social Welfare for regularization vide letters
dated 18-8-2001 and 3-1-2002. This was necessitated because their initial appointment was made by Deputy Director, who was admittedly not
competent. The proposal for their regularization came to be rejected vide order dated 31-1-2001 which is impugned in the present petition. Vide
afore-said order the Director, Social Welfare referred all the vacant posts to Deputy Commissioner for appointment under SRO No. 43 of 1994.
The petitioners are seeking their regularization under Govt Order No. 1285 of 2001.
Official respondents in their reply referred to Circular No. 36-GAD of 2001 dated 31-12-2001 whereby all Class IV posts are required to be
filled up for compassionate appointment under SRO 43 of 1994 by the concerned Deputy Commissioner. The appointment of the petitioners is
stated to be illegal. It is further stated that the petitioners have no right for regularization. SWP No. 250/2002 (Nifat Ara v. State and Ors.)
Petitioners in this case were appointed against class IV posts vide various orders referred to in para 3 of the writ petition pursuant to the
approval accorded by the Minister for Social Welfare. Petitioners No. 1 & 2 claim to be regularized. It is the ease of the petitioners that despite
being appointed they are being thrown out. Petitioners other than petitioners No. 1 & 2 are seeking their regularization on the same analogy as that
of petitioners No. 1 & 2. Apprehending their removal they have approached this Court seeking their continuance and regularization.
Official respondents have filed the objections in which same stand is taken as in SWP No. 1129/2002. In addition to this, it is stated that these
respondents have filed another writ petition being SWP No. 1040/2002. SWP No. 1040/2002 (Nifat Ara and Ors. v. State and Ors.)
Petitioners who are common to this petition and SWP No. 250/2000 claim to be appointed and regularized in Social Welfare department.
They have approached this Court apprehending their removal on the basis of communication impugned in this petition whereby the Director has
been asked to refer all Class IV posts to the Deputy Commissioner concerned for appointment under SRO No. 43 of 1994.
In the objections the official respondents have specifically stated that the appointment of the petitioners is illegal and it does not confer any right
for regularization.
Some of the writ petitions filed by the appointees were decided by the learned Single Judge vide judgment dated 19-2-2002 and a direction
was issued for regularization of the appointees in terms of SRO 64 of 1994 as also Govt order No. 1285 of 2001. This judgment became subject
matter of challenge in number of Letters Patent Appeals and the appeals filed by the State Government were allowed and cases remanded to the
writ Court for appropriate orders.
One of the order dated 11-7-2002 passed in LPA No. 125/2002 and 126/2002 is reproduced:
Admit.
Learned counsel Mr. K.S. Johal, waives service of notice for respondents. At the request of counsel, the matter is taken up for final disposal.
There is no dispute that the appellant was not given the opportunity of hearing, even the objections were not filed. In this view of the matter, it is
agreed upon by the counsel that the matter may be remanded back to the learned Single Judge for hearing in accordance with law. In the
meanwhile, status quo to continue till the matter is placed before the learned Single Judge. It would be open to the State to make an application for
vacation. Impugned judgment stands quashed and set aside.
Both the LPAs stand disposed of accordingly.
From the facts narrated hereinabove in various writ petitions what has emerged is that some appointments have been made to Class IV and
Class III posts in the Government, particularly in Social Welfare Department, without advertising the posts and inviting applications from all eligible
candidates. Some of the appointees who entered through back-door were unable to persuade the authorities for their regularization and either on
being ousted or apprehending their ouster approached the Court seeking their continuation in the service and regularization to the posts. Some of
the persons who were not regularized also challenged the appointment of some persons who were appointed in the similar manner. In some
petitions, the appointments made through back door have been challenged. As far as the appointees are concerned they are defending their
appointment and are seeking their regularization invoking the Government policy as notified vide Govt Order No. 1285 of 2001 dated 6-11-2001.
It is not disputed that all appointments in the cases in hand, have been made in gross violation of Articles 14 & 16 of the Constitution of India.
No advertisement notice has been issued, and no opportunity provided to all eligible candidates by any public notice. Persons have been picked
up, chosen and appointed in most arbitrary manner and through back door. Even the persons appointed in leave arrangements have been allowed
to continue for years together. The whole affair of back door appointments demonstrate sorry state of affair in the Government Departments which
not only pricks the conscious of the Court but also project the apathy on the part of the Government Officials who have blatantly mis-used their
official position to accommodate their kith and kins, adopted all sorts of illegal methods to usurp the Government jobs. The concept of a welfare
State and a model employer has been thrown to winds, the deserving and meritorious deprived of their basic and fundamental right of seeking their
consideration for the Government jobs and at their cost appointments made through back-door. Under these conditions and circumstances what is
the duty and obligation of this Court ? The Court enjoined with constitutional duty to do justice has to act as a curator and not a mere spectator.
The Apex Court in case of State of Maharashtra Vs. Chandrabhan Tale, while examining the right of citizens to hold public office held as under:-
Though I share the view expressed by my brother that public employment opportunity is national wealth in which all citizens are equally entitled
to share and that no class of people can monopolise public employment in the guise of efficiency or other ground, I am afraid, I wish to guard
myself against accepting the view that the right to equal opportunity to public employment may be treated as a new form of private property with its
attribute of competitive exploitation. The fundamental right to property has been abolished because of its incompatibility with the goals of justice,
social, economic and political and equality of status and of opportunity and with the establishment of a socialist democratic republic, as
contemplated by the Constitution. There is no reason why a new concept of property should be introduced in the place of the old so as to bring in
its wake the vestiges of the doctrine of laissez faire and create, in the name of efficiency, a new obligarchy. Efficiency has many facets and one is
yet to discover an infallible test of efficiency to suit the widely differing needs of a developing society such as ours. There is a present inherent
danger of a class dominated civil service resulting from the concept of employment opportunity as private property. We have to guard ourselves
against any such result. I agree with the order proposed by my brother.
I agree with this view of the learned Single Judge regarding public employment being property of the nation which has to be shared equally
subject of course to the qualification necessary for holding the office or post. I wish to add that it should not be monopolized by any particular
section of the people of this country in the name of efficiency, though efficiency cannot altogether be ignored. x x x
In view of the dictum of the judgment of the Apex Court referred to hereinabove, no individual or a person has a right to occupy the public
office without being selected and appointed in accordance with the procedure established by law. The procedure has to be fair and in consonance
with the constitutional policy enshrined under Articles 14 & 16 of the Constitution of India. Article 14 prohibits the State to deny equality before
law or equal protection before law to any person within the territory of India, Whereas Article 16 confers right on all citizens to be treated equally
in the matter of opportunity relating to employment or appointment to any office under the State. These two articles are the spirit of our constitution
as they promote the basic constitutional philosophy envisaged by the preamble of the Constitution which ensures justice, social, economic and
political and equality of status and opportunity. Any act on the part of the State that frustrates constitutional philosophy cannot be allowed to
operate. In the present scenario where there is a growing un-employment the protection afforded to the un-employed citizens of this country under
the constitution is the only source of hope. The primary duty of a Court is to ensure that the State acts within the frame work of the constitution and
all its actions, executive, legislative or administrative must operate within the four-corners of the constitution and the laws framed by the State in
implementation of such constitutional mandate.
Reliance is placed by the appointees who have been able to occupy the public office by means impermissible in law upon Government Order
No. 1285-GAD of 2001 dated 6-11-2001. The relevant extract of the afore-said Government order is as follows:-
Now, therefore, it is hereby ordered that all adhoc appointees to non-gazetted posts recruited from time to time beyond 20-12-1988 till the date
of issue of this order who are still in service be considered for regularization after completing seven years of continuous service from the date of
appointment dispensing with reference of posts held by them to Service Selection Board subject to the following conditions, that:
(1) he/she is a permanent resident of J&K State.
(2) On the date of his/her initial appointment his/her age was within the minimum and maximum age limit as prescribed for appointment in
Government Service.
(3) He/she possesses the prescribed academic and/or technical qualification for the post against which he/she is required to be regularized;
(4) He/she is not retiree from any State or Central Government Service or any local body, Public Sector Undertaking or Autonomous Body in or
outside the State.
(5) His/her work and conduct has remained satisfactory during the period he/she worked as adhoc appointee and no disciplinary proceedings or
vigilance case is pending against him/her; and
(6) He/she has completed seven years continuous period of working as adhoc employee;
(7) x x x x x x x
(8) x x x x x x x
No doubt the State has executive power to take any decision and perform any act with respect to which it has the legislature power to make
law in terms of Section 5 of the J&K State Constitution, read with Article 162 of the Constitution of India. However, the power has to be
exercised in accordance with the constitutional mandate and not other-wise. Assumption of power to regularize the illegal and back door
appointments made by any person whosoever vide afore-said Government order, in my opinion does not entitle the State to regularize all those
appointees who may have acquired any position in accordance with the afore-said Govt order unless the mandate of Articles 14 & 16 is adhered
to. If the State cannot nullify the impact of Articles 14 & 16 by any legislative act, the same cannot be permitted to be done by an executive order.
Therefore, the petitioner or for that matter any person who has snatched and usurp the public office at any level in violation to Articles 14 & 16 of
the Constitution of India cannot seek a direction from the Court for regularization of the service/appointment. I decline to accept the forceful
contention made by the learned counsel for the appointees for regularization of their appointments admittedly made without inviting applications and
providing opportunity to all the eligible candidates to apply and seek consideration for their appointment. An added reason to say so is because the
appointments though adhoc and temporary have not been made in accordance with Rule 14 of the J&K Civil Services (Classification, Control and
Appeal) Rules 1956. Rule 14 of J&K Civil Services (Classification, control and Appeal) Rules 1956 reads as under:
Temporary appointments -- Where it is necessary in 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 did
not more than nine months in all.
Rule 14 of the J&K Civil Services (Classification, Control and Appeal) Rules 1956 is the only source for making adhoc/temporary
appointments to any service, class or category. It is no-body's case that the adhoc/temporary appointments made even at the behest of Minister
Incharge were made with the approval of the Chief Minister. A Division Bench of this Court in case of Mumtaza Akhtar v. State and Ors. 2001
S.L.J. 22 considering the right of an adhoc appointee in violation of rule for regularization held as under:-
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:
'14. Temporary appointments:-xxxxxxxxxxxxxxxx'
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.
In view of the detailed discussions made hereinabove and the position of law the irresistible conclusion that can be drawn is (i) Appointment of
persons to various posts without inviting applications and providing opportunity to all eligible candidates is illegal, in- valid and is liable to be
quashed. All such appointments are hereby quashed. Writ Petitions SWP Nos. 3059/2001; 250/2002; 1129/2002; 2361/2001; 495/2003;
2014/2002; 104/2002 and 1048/2002 are hereby allowed, (ii) All appointees who are holding any post or office be on adhoc basis or in leave
arrangement without being appointed by the competent authority in accordance with Rule 14 (Supra) are not entitled to be regularized or continued
on the post. In case of such of adhoc temporary appointees who have completed their tenure of adhoc appointment as specified under Rule 14
(Supra) no further extension shall be given. Their service shall be dispensed with forthwith. Writ petition SWP Nos. 271/2002; 1140/2002;
1031/2002; 403/2002; 1040/2002 and 276/2002 filed by the appointees for regularization shall stand dismissed.
Petitions are accordingly decided in the above manner.