Rakesh Kumar and Eleven Ors. vs Dinesh Sharma and Others

S.K. Gupta, J.—We have heard Mr. D.C. Raina, learned senior Advocate, along with Mr. Mohd. Farooq, as well as Mr. S.S. Ahmed,

learned counsel for the respondents, and also perused the record of the file meticulously.

This appeal is directed against the judgment and order dated 30th April 2004 passed by the learned Single Judge in SWP No. 2319/2001,

entitled Dinesh Sharma and Ors. v. The State of Jammu and Kashmir; and SWP No. 2029/2000, entitled Altaf Hussain Butt v. The State of

Jammu and Kashmir and Ors., whereby the appointments of the private-respondents in both the writ petitions, having boon made in violation of

Articles 14 and 16 of the Constitution of India, were quashed by issuing a writ of certiorari; with further direction to the official-respondents that

the posts of class-IV employees be filled up in accordance with rules and procedure.

Facts of the case, in brief, may be noticed. The case of the petitioners before the writ Court was that the official-respondent, Dr. M.P. Gupta,

former Director, Health Services, issued appointment orders for Class-IV posts in the Department of Health and Family Welfare on the direction

and at the instance of the then Minister of State for Health and Family Welfare, Pt. Govind Ram Sharma. It is further indicated by the petitioners

that before making the appointments, no advertisement notice was issued nor applications were invited, so as to afford an opportunity to all eligible

persons of competition for the posts in question. That the entire recruitment process was tainted with mala fides and violated the fundamental rights

guaranteed under Articles 14 and 16 of the Constitution of India in having been denied equal opportunity of consideration for selection. Further

case of the petitioners was that the appointments of all the private-respondents were back door appointments, in respect of which a case was also

registered with the Vigilance Organization, which also found, during investigation, that Dr. M.P. Gupta, the then Director, Health Services (official-

respondent), in connivance with others, made appointments to Class-IV posts and abused his official position. The appointment orders were

issued in utter violation of Government Order No. 1786-GAD of 1997, which provides that recruit- ment to Class-IV posts in the Department,

shall be made in accordance with rules and procedure by the concerned Head of the Departments. The only plea taken by the respondents orally

during arguments was that as the private-respondents have been working in the Department since long after their appointments, the case of the

respondents be considered on humanitarian grounds and given a sympathetic consideration. This plea, however, did not merit acceptance with the

learned Single Judge, who found the appointments of all the private-respondents in both the writ petitions, to public posts of Class-IV employees

in the Health and Medical Department not in accordance with rules and procedure, and quashed the appointments by the impugned judgment and

order, which became the subject matter of challenge by the private-respondents in this appeal.

Mr. D.C. Raina, learned senior counsel appearing for the appellants, assailed the propriety and legality of the judgment of the learned Single

Judge on twin grounds; firstly, that the appellants were not served before the writ Court and, thus, have not been given sufficient opportunity to be

heard by filing a counter and making the oral submissions; and, secondly, that the appellants/private-respondents are continuing in service for a

pretty long time, and to balance the equity, fair play and in the interest of justice, their appointments cannot be set aside and quashed, as it would

disturb the entire administrative machinery.

As regards the first contention raised by Mr. Raina, on going through the record of the writ Court, it is found that Court, vide its order dated 05-

12-2001, set ex-parte respondents-3 to 17, when they did not appear either personally or through their counsel even after the expiry of statutory

period in construing the deemed service on the respondents in SWF No. 2319/2001, entitled Dinesh Sharma and Ors. v. The State of Jammu and

Kashmir and Ors. Similarly, in SWP No. 2029/2000, entitled Altaf Hussain Butt v. The State of Jammu and Kashmir and ors., none appeared on

behalf of the private-respondents, when notices issued to the private-respondents under registered covers having not been received back served or

unserved, even after expiry of the statutory period and they were deemed to be served on the respondents.

The contention of Mr. D.C. Raina, as regards the first plea raised by him, stands controverted and traversed by judicial order to which a

presumption of correctness is attached and, thus, cannot be accepted. Another limb of argument advanced by Mr. Raina is that the appellants had

been continuing in service for some time and their ouster from the posts of Class-IV employees, at this stage, would not be in the interest of justice,

fair play and equity, and would result into hostile discrimination for the appellants. It is not in dispute that the appointments were made without

public notice and inviting applications for the said posts from the eligible candidates. Prayer in both the writ petitions was for quashing the

appointments of all the respondents, being in violation and breach of Government Order No. 1786-GAD of 1997, as the said appointments have

not been made by the official-respondents in accordance with the rules and the procedure. According to the respondents, their plea stands

strengthened from the fact that even the Vigilance Organization investigated the matter after registration of a case and found the appointments to

Class-IV posts made for extraneous considerations, without following the rules and the procedure. No recruitment process was initiated. This has

led to the denial of opportunity of competition for the posts of Class-IV employees to the petitioners and, thus, violated their precious right to equal

opportunity guaranteed under Articles 14 and 16 of the Constitution of consideration for selection. The Apex Court, while dealing with the right to

equal opportunity to public employment whether the private property, under Articles 16 and 300A, in State of Maharashtra Vs. Chandrabhan

Tale, , held as under:

Public employment opportunity is national wealth in which all citizens are equally entitled to share and no class of people can monopolise public

employment in the guise of 'efficiency"" or other ground, but the right to equal opportunity to public employment cannot be treated as a new form of

private property with its attribute of competitive exploitation.

Public employment is property of the nation which has to be shared equally subject of course to the qualification necessary for holding the office or

post, however, it should not be monopolized by any particular section of the1 people of this country in the name of efficiency, though efficiency

cannot altogether be ignored.

Again in Madhav Hayawadanrao Hoskot Vs. State of Maharashtra, , the Apex Court observed as under:

It may further be pointed out that every step that makes the right to equal opportunity to public appointment fruitful is obligatory and every action

or inaction which stultifies it is unfair and, ergo, unconstitutional.

It is also apt to indicate that the range and scope of Article 14 and consequently Article 16 have been widened by a process of judicial

interpretation so that the right to equal opportunity to public employment now not only means the right not to be discriminated against, but also

protection against any arbitrary or irrational act of the State. Keeping pace with this broad approach to the concept of Public employment under

Articles 14 and 16, Courts have whenever possible, sought to curb all arbitrary exercises of power against individuals by ""centres of powers"", and

there was correspondingly an expansion in the judicial definition of ""State"" in Article 12. Where the rules and the procedures have been ignored in

the recruitment process, the question of maintenance of efficiency of administration cannot be sustained. It is always expected of the government to

make appointments to public posts by making advertisement and inviting applications by giving reasonable chance to all the eligible candidates to

apply. The basis rule is equality of opportunity for every person in the country, which is a constitutional guarantee. The respondents, who happened

to be petitioners in the writ petitions, have specifically pleaded hostile discrimination for promotion of equalization and have succeeded in justifying

the ex-facie deviation from equality. Recruitments to Class-IV posts in the Health Department have been made in a clear deviation to the rules and

the procedure provided under Government Order No. 1786-GAD of 1997. Public notice for recruitments to public posts and inviting applications

is a first step towards transparency and fairness in the public employments/appointments. In the instant case, the recruitments to Class-IV posts

without adopting a fair and just criteria are ex-facie back door appointments and, therefore, did not confer any right on the appointees nor on its

basis, they can claim any equity or relief from the Court, and have rightly been quashed by the learned Single Judge. We do not find any infirmity or

jurisdictional error in the impugned judgment and order propounded by the learned Single Judge and the view expressed is a view to which no

exception can be taken.

For what has been stated and discussed above, we do not find any merit in this appeal and is, accordingly, dismissed.