Shaheena Firdous and Another vs State and Others

Mansoor Ahmad Mir, J.—The identical questions of law are involved in both the above titled writ petitions, thus I deem it proper to decide

both the petitions by this common judgment.

Writ petitioner filed SWP No. 531/1995 in this Court with the prayer that respondents be directed to allow the petitioner to hold the post of

teacher without break till Shama Dhar rejoins her duties and also prayed that respondents be restrained from terminating the services of the

petitioner on the grounds taken in the writ petition, which can be aptly and precisely enumerated at under;-

It is averred in the writ petition that due to prevailing circumstances a section of the population migrated from Kashmir Valley. In order to

overcome the difficulties and to gear up the Government machinery and to make educational institutions functional, State Government made a

policy decision, whereby it was decided to fill-up the posts rendered vacant because of migration. State Government- respondents also framed

rules for filling up the vacancies. The posts came to be filled up and candidates who came to be appointed against the said posts are holding the

position from 1990 without any break.

Petitioner also moved so many applications and came to be temporarily appointed as teacher vide order No. ZB/90-91 dated 7th April, 1995

for a period of 89 days. Petitioner joined Primary School Sirhama on 10th April, 1995 and is performing duties.

The grievance of the petitioner is that respondents are bent upon to terminate her services in order to select and appoint blue eyed person

against the said post.

Respondents have resisted the petition. It is profitable to reproduce paras-2 and 5 of the preliminary objections herein, which reads as under:

That the petitioner had no right as her engagement as a - substitute against migrant vacancy is against law because ZEO has no

competence/authority/jurisdiction under rules to make temporary engagement or leave arrangement for the post of teacher. It may be mentioned

that the ZEO namely Bashir Ahmed who has fraudulently engaged the petitioner, was placed under suspension for his various acts of omissions and

commissions and has now retired. Therefore, the order upon which petitioner relies is not maintainable under law, as such, present writ petition is

liable to be dismissed.

That the Govt. had imposed Ban in 1994 for engagement of any candidate against migrant vacancies. Therefore, incompetent person i.e. ZEO

can not make engagement in violation of the procedure prescribed by the Government. As such no right is created in her favour. Therefore, present

writ petition is misconceived and is liable to be dismissed.

This Court passed interim direction on 14tn July, 1995, which reads as under:

Notice. Notice in the CMP also. In the meanwhile subject to the objections of the otherside the respondents are directed to continue the petitioner

if he is working as on date till the migrant rejoins his duty. She shall be paid the salary.

During the pendency of the writ petition, petitioner has filed a contempt petition No. 99/2000 which came to be disposed of vide order dated

31sl May, 2000.

Petitioner has also filed CMP No. 1725/2001 for directing respondents to release the salary. This Court disposed of the said CMP vide order

dated 9th December, 2002. It is profitable to reproduce operative part of the said order herein, which reads as under:

In the circumstances it is obvious that if the work has been taken from petitioner as teacher she has to be paid for that. It is not as if she is doing

'beggar'. If the Respondents had any doubt about the genuineness of appointment of the petitioner and her entitlement to work thereafter, the

respondents should have taken steps thereto. Respondents in fact have continued here all along for last about 8 long years without any murmer or

interruption. Now at this stage they cannot turn around to refuse her salary on one or the other pretext, when she has infact worked and discharged

her duties as such teacher. Respondents/competent authority is directed herewith to disburse the salary due to petitioner which she has earned and

may earn in future, of course subject to satisfactory performance and good conduct. Disposed of.

During the pendency of the writ petition the Director Education issued an order No. Estt-III/B-Writ-l 50/95-1110-11 dated 24th May, 2005

to Chief Education Officer, Anantnag, directing the Chief Education Officer- respondent No. 3 to cancel the engagement of the petitioner. In

compliance of the said order Chief Education Officer- respondent No. 3 directed Zonal Education Officer-respondent No .4 to issue the

cancellation order.

Feeling aggrieved the petitioner filed writ petition bearing SWP No. 618/2005 and prayed for issuance of writ of certiorari quashing the said

letters contained in annexure-R to the writ petition on the grounds taken in the writ petition and also prayed that respondents be directed to allow

the petitioner to continue on the post of teacher in terms of order dated 07.04.1995 without any impediment or obstruction.

Respondents stated that counter already filed in SWP No. 531/1995 be treated as reply to this petition and learned Counsel for petitioner

stated at Bar that he has not to file rejoinder. Accordingly, both the writ petitions were heard together and reserved for judgment.

Learned Counsel for petitioner stated that petitioner came to be appointed/engaged teacher against the cost which had fallen vacant due to

migration of Shama Dhar and Zonal Education Officer was competent to issue the appointment order. Salary came to be released in her favour in

terms of the court order for some period and thereafter, was not released. She is holding the position even today but despite of that respondents

have failed to release salary. Further argued that her services be regularized in terms of the Full Bench Judgment passed by this Court in case titled

as Rafiq Ahmad Dar v. State of Jammu & Kashmir decided on 28th June, 2001 (SWP No. 1309/1998 and connected matters).

Learned Counsel for respondents argued that Zonal Education Officer-respondent No. 4 had no power, authority and jurisdiction to appoint

and select any candidate against any post which had fallen vacant due to migration. Government had issued order No. 462-EDU of 1991 dated

5th April, 1991 whereby and whereunder District Level Committees were constituted for making selection/appointments by inviting applications.

Thus the so called appointment order pressed into service by petitioner is de hors of rules and without any competence and jurisdiction and on the

face of it is illegal. He further argued that respondents released salary in her favour in terms of the orders passed by this Court. The competent

authority- administrative department considered the matter and Director Education was directed to issue cancellation order and also to draw action

against the erring officials. But petitioner has not allowed the respondents to pass such orders for the reasons petitioner approached this Court by

the medium of writ petition bearing SWP No. 618/2005 and the communications issued by the Administrative Department, Director Education,

Chief Education Officer and Zonal Education Officer came to be stayed.

Considered.

It is profitable to reproduce Government Order No. 462-EDU of 1991 dated 5th April, 1991 herein, which reads as under:

Sanction is hereby accorded to the Constitution of District Level Committees as per details given below for selection of candidates to function in

substitute capacity of the migrant staff in the Education Department:

Districts of Srinagar/Anantnag/Pulwama/Budgam

Divisional Commissioner, Kashmir Chairman

Joint Director/Dy. Director of the Directorate of School

Education (to be nominated by DSEK) Member

District Education Officer. Member-Secy.

Districts Baramulla/Kupwara.

Special Commissioner Chairman

Joint Director/Dy. Director of the Directorate of School

Education (to be nominated by DSEK) Member

District Education Officer Member-Secy.

The modus operandi for making appointments on substitute basis shall be as under:

i. Appointments should be made only by inviting applications.

ii. For the posts of Teachers in Schools the minimum qualification shall be graduation.

iii. For the post of Teachers in High/Higher Secondary Schools the minimum qualification be post graduation.

iv. Preference shall be given to the candidates having experience in Teaching/B.Ed./M.Ed.

The arrangement shall be made for a period of 60 days at a time and extension be granted after usual breaks for the academic session.

The appointments of the selected candidates shall be subject to the confirmation by the Administrative Department (Education Department).

By order of the Government of Jammu and Kashmir.

While going through this order, one comes to an inescapable conclusion that Government had formulated norm/policy how to fill up the migrant

vacancies. The committee constituted for making selection in Srinagar/An-antnag/Pulwama and Budgam districts was comprising of Divisional

Commissioner, Kashmir as Chairman, Joint Director/Dy. Director of the Directorate of School Education (to be nominated by DSEK) as Member

and District Education Officer as Member Secy. The committee had to invite applications and the eligible candidates had to file applications and

then committee had to make selection and issue appointment orders and preference was to be given to the candidates having experience in

teaching having qualifications of B.Ed./M.Ed.

While going through this order, respondent No. 4- Zonal Education Officer had no power to issue such appointment order and respondents

had drawn action against the then Zonal Education Officer, namely, Bashir Ahmad.

It is beaten law of the land that back door entry or appointment made in de hors of rules does not create any right or interest in favour of the

appointee.

Apex Court in a case titled M.C. Mehta Vs. Union of India and Others, has held that appointment to the post is governed by a set of statutory

rules, it is unthinkable to adopt extra constitutional method of appointment.

Apex Court in another case titled National Fertilizers Ltd. v. Somvir Singh reported in AIR 2006 SCW 2972, held that appointments which

came to be made in de hors o 'recruitment rules is illegal and further Apex Court held that a candidate who came to be appointed in de hors of

rules has no right to continue in service. It is profitable to reproduce paras 24 and 27 of the said judgment herein:

The contention of the learned Counsel appearing on behalf of the Respondents that the appointments were irregular and not illegal, cannot be

accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even

the Selection Committee had not been properly constituted. In view of the ban in employment, no recruitment was permissible in law. The

reservation policy adopted by the Appellant had not been maintained. Even cases of minorities had not been given due consideration. 27. It is true

that the Respondents had been working for a long time. It may also be true that they had not been paid wages on a regular scale of pay. But, they

did not hold any post. They were, therefore, not entitled to be paid salary on a regular scale of pay. Furthermore, only because the respondents

have worked for some time, the same by itself would not be a ground for directing regularization of their services in view of the decision of this

Court in Uma Devi (supra).

Apex Court in the case titled State of U. P. v. Neeraj Awasthi reported in AIR 2006 SC 123 held that appointment can not be made in

violation of the provisions of recruitment rules. It is profitable to reproduce para-51 of the said judgment herein:

An attempt to induct an employee without following the procedure would be a backdoor appointment. Such backdoor appointments have

been deprecated by this Court times without number.

Apex Court held in a case titled as Indian Council of Agricultural Research and Another v. T.K. Suryanarayan and Others, 1997(6) SCC 766.

held that a candidate who came to be appointed in de hors of rules cannot claim any right or title.

Apex Court in a recent judgment titled as Secretary, State of Karnataka and Ors. v. Umadevi and Ors. reported as AIR 2006 SCW 1991

held that appointment in de hors of due process of selection confers no right on appointee. It is profitable to reproduce relevant portion of para-34

of the said judgment herein:

Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the

appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the

appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment

on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be

made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage

worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent,

merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the

relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has

come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article

226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the

recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an

order of Court, which we have described as litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be

absorbed or made permanent in the service. In fact, in such case, the High Court may not be justified in issuing interim directions, since, after all, if

ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no

prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or

impose on the Stale the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere

unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing

of the constitutional and statutory mandates.

Apex Court has laid down the ratio (supra) in case titled T. Vijayalakshmi and Others Vs. Town Planning Member and Another, .

. Apex Court in case titled as Ravi Rao Gaikwad and Others Vs. Rajajinagar Youth Social Welfare Asson. and Others, held that such mode of

appointment is illegal and not permissible.

No doubt this Court passed interim directions referred hereinabove whereby and whereunder petitioner was allowed to continue and salary

was also released. But a candidate who is working as per court orders cannot use those orders as weapon in her armoury in order to seek relief of

regularization or continuation or restrain the respondents from passing appropriate orders.

Apex Court in a case titled as State of U.P. and Others Vs. Raj Karan Singh, , wherein their lordships have held that:

2...Besides, merely because a person continues under the interim orders of the Court, such continuance on the post cannot and, in this case, does

not confer on him any right for continuance, it does not enhance his case for regularization. It is only an interim arrangement pending decision by the

Court and cannot disturb the position in law or equities, as on the date of the petition.

Keeping in view the discussion made hereinabove, the petitioner came to be appointed / engaged in terms of illegal order and by an

incompetent person and was allowed to work in terms of court orders.

It appears that Administrative Department respondents after going through the entire record and the court orders directed Director Education

to cancel the illegal appointment order and also draw action against the erring officer in terms of annexure-R enclosed with SWP No. 618/2005. I

am of the considered view that administrative department has rightly exercised the powers and directed Director Education to do the needful.

In the given circumstances SWP No. 618/2005 is outcome of SWP No. 531/1995 and same merits to be dismissed. Resultantly both the writ

petitions merits to be dismissed.

Accordingly, both the writ petitions are dismissed along with all connected CMP(s). Interim directions passed shall stand vacated.