Suhail Ahmad Bhat vs State and Others

This Letters Patent Appeal is directed against the order-dated 29.7.2005, whereby the learned Single Judge has dismissed the writ petition of

the appellant maintaining the impugned order of cancellation of his appointment as an Orderly.

Appellant came to be appointed by the Chief Medical Officer, Pul-wama as desired by the Minister for Forests Jammu and Kashmir State as

Class IV servant in the pay scale of Rs. 2550-3200. The Chief Medical Officer made number of such appointments. The Director, Health Service,

Kashmir noticed that all such appointments are illegal and vide his order dated 30.10.2003 directed the Deputy Chief Medical Officer not to

entertain such orders.

Aggrieved of the order-dated 30.10.2000 passed by the Director, Health Services Kashmir. The appellant challenged it by means of the writ

petition before the learned Single Judge on the ground that the principle of natural justice has not been followed. The Chief Medical Officer was

competent to appoint the appellant. No enquiry has been conducted before cancellation of the appointment order and similarly situated persons

have been permitted to continue.

The learned Single Judge on appreciation of the rival contentions of the parties has dismissed the writ petition observing that the appointment

made by the Chief Medical Officer is illegal and cannot be maintained.

The order of learned Single Judge has been challenged by the appellant on the same grounds as set out in the memorandum of the writ petition,

such as the principles of natural justice have not been observed, similarly situated persons are permitted to continue and enquiry has not been

conducted.

Heard learned Counsel for the parties and perused the record.

The appellant was appointed at the instance of Minister of Forests which is evident itself from the appointment order of the appellant passed by

the Chief Medical Officer, Pulwama. The poet of orderly is to be filled up by advertising the post providing opportunity to all the eligible persons to

seek consideration. The Director, Health Service, Kashmir came to know that illegal orders have been passed by the Chief Medical Officer and

issued impugned order dated 30.10.2000 directing that the appointments made by the Chief Medical Officer, Pulwama are illegal and should not

be entertained.

The plea of the learned Counsel for the appellant that the principles of natural justice have not been followed is misdirected. The principles of

natural justice are required to be followed where the appointments are legally valid. Illegal appointment do not vest or create any enforceable right

in the court of law. Another plea of the learned Counsel for the appellant is that the Chief Medical Officer was competent to appoint Class IV

employee and the appointment on that score cannot be declared bad in law. Even if the Chief Medical Officer is competent to appoint persons as

Class IV employee, the appointment is to be made in accordance with the law. The post was required to be advertised. The appellant has been

appointed at the instance of the Minister which is not in consonance with the procedure prescribed in law. The candidate is required to be

subjected to the process of selection by the Selection Committee and the only meritorious candidate can been appointed by the competent

authority on the recommendation of the selection committee. The appointment has been made de hors the rules and the procedure. His candidature

has not been recommended by the selection committee.

So far as the plea of the learned Counsel for the appellant that the enquiry has not been conducted is concerned, illegal appointment does not

vest any valid or legal right. Enquiry has to be conducted where the appointment is valid. The last plea of the learned Counsel for the appellant that

the similarly situated persons are being continued by the respondents, whereas, the appellant has been ousted and thus discriminated.

Discrimination is a positive concept and no negative as held by the Supreme Court in Gursharan Singh v. New Delhi Municipal Committee

Reported in 1996 page 705, as under:

The guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other

words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the

jurisdiction of the High Court or of the Supreme Court, that the same irregularity or illegality be committed by the State or an authority which can

be held to be a State within the meaning of Article 12 of the Constitution, so far such petitioners are concerned, on the reasoning that they have

been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of

orders which are said to have been passed in favour of persons who were not entitled to the same but they cannot claim orders which are not

sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this

concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to

directing to continuance and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on

equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been

extended to others and in this process there has been a discrimination.

Before seeking application of equality before law as argued, the appellant has to make out that his appointment is legal and valid in law.

Employment is a public property as pronounced by the Supreme Court in State of Maharashtra Vs. Chandrabhan Tale, and cannot be

distributed in the manner it has been done. Every citizen has a right to seek employment and it is possible only if the post is advertised providing

opportunity to all the eligible contending candidates to seek consideration in the process of selection. It has not been done in this case and the

appointment has been made in an arbitrary manner and dehors the rules and the procedure which cannot be maintained. The learned Single Judge

has rightly appreciated the facts and law and come to the conclusion in dismissal of the writ petition.

Fore the aforesaid reasons, the appeal being devoid of any merit is dismissal.