Vijay Bhat vs State of Jammu & Kashmir

Abdul Qadir Parray, Judge

The petitioner is one amongst other 15 persons who were appointed on adhoc basis for a period of three months or till the posts were filled up

by the competent authority/Subordinate Service Recruitment Board, whichever was earlier, in pursuance to Administration Department Letter

No:PWD/Gen/21/89 dated 29th April 89, vide order of Superintending Engineer (C) Kashmir PHE, Circle Srinagar under No.2 of 1989 dated

12th July, 1989.

The person of the petitioner further submits that in pursuance to the said order he joined the duties and was performing his duties and getting his

pay till middle March, 90 when he had to migrate to Jammu.

In Jammu also the petitioner was paid salary as a works Supervisor by the office of respondent no.4 for the months of March, April and May,

90 but thereafter till date he has not been paid any salary despite of having made repeated requests to the respondents.

Somewhere in the month of March, 1991 the petitioner came to know that respondent no.5 i.e. Chief Engineer, Public Health Engineering

Department, Srinagar vide order No: PHE/ESTT/58 of 1990 dated 16th Juiy'90 in pursuance to Administrative Department Letter

No:PW/PHE/138/90 dated 10th July 90 having issued an order thereby saying that the petitioner amongst 16 other persons have been engaged as

daily wager @ Rs. 18/ per day.

The person of the petitioner further submits that as he was working and continued to work against the post of works Supervisor notwithstanding

the fact of his having migrated to Jammu and the order passed by the respondents, forming Annexure p2 to the petition, being illegal and violative

of principles of natural justice, is not sustainable in the eyes of law.

It is also pleaded by the petitioner that the initial appointment of the petitioner on adhoc basis was for a period of three months or till the post

was filled up by the competent authority/Subordinate Service Recruitment Board, whichever was earlier, and since the petitioner continues to hold

the said post, as the initial period of three months already expired, and was extended from time to time but so far no regular selection against the

said posts have been made by the competent authority/, Subordinate Service Recruitment Board, as such the petitioner is entitled to continue to

hold the said post till the same is regularly filled in accordance with the rules.

It is also averred that the order (Annexure p2 to the petition) whereunder the petitioner has been asked to work as a Daily Wager, purports., to

change the service condition of the petitioner from his appointment on adhoc basis to his appointment on daily wage basis, which being absolutely

wrong, illegal, arbitrary and violative of principles of natural justice, is liable to be quashed. Further, the petitioner is entitled to be continued against

the post of works Supervisor in the grade of 630940 till regular selections are made by the competent authority/SSRB.

It is further pleaded that the order impugned is in violation of the principles of natural justice as no prior notice of being heard was ever issued to

the petitioner by the respondents. The impugned order is accordingly liable to be quashed.

It is also pleaded that the impugned order is in contravention and violation of established principles of service jurisprudence as the service

conditions of the petitioner cannot be altered by the employer unilaterally to the detriment of the employee and, in case any change is to be done in

the service conditions, that is to be done with the consent and knowledge of the person affecting thereby.

It is further pleaded that it is not only the nature of appointment of the petitioner which has been changed from ""adhoc appointee"" to ""daily

wager"" but the petitioner has also been made to suffer financially and has resulted in civil wrong and from the regular grade he was getting his salary

in accordance with the same, whereas by virtue of impugned order the petitioner is sought to be given only Rs.18/ per day as his wages. This

financial loss caused to the petitioner is illegal and unconstitutional and the impugned order needs to be quashed on this score also.

It is also claimed by the petitioner that since the post held by him has not been regularly filled in, as such the petitioner is entitled to continue

against the said post on ""adhoc basis"" till the same is filled in accordance with the rules on permanent/ regular basis. It has also been pleaded that

on the eve of filling up the post either to held by the petitioner on adhoc basis by the competent authority on permanent basis, the petitioner is also

entitled to be considered for regular appointment. But, under the garb of order impugned, the said valuable right of the petitioner has also been

snatched, which is not permissible under law.

And, in this backdrop the petitioner has prayed for issuance of a writ of Certiorari quashing impugned order No.PHE/Estt/58 of 1990 dated

16th July'90 as issued by respondent no.5 where under the petitioner has been termed as a daily wager from the post of Works Supervisor, further

a writ of prohibition is sought restraining the respondents from implementing the impugned order qua the petitioner; and a writ of mandamus

declaring and commanding the respondents to treat the petitioner to be continuing as a Works Supervisor in the grade of 630940 pursuant to his

order of appointment as contained in Annexure pi to the petition, and further commanding the respondents to release the salary in favour of the

petitioner right from the month of June""90 till date and also pay him salary regularly in future as well.

This petition seems to have been moved way back on March,7'91. Respondent state was served, they appeared but they did not file any

objections. The matter seems to have been admitted on November, 4'91. Again opportunity seems to have been given to the respondents but they

have not filed any counter. So in that view the averment made by the petitioner supported by an affidavit remains unrebutted on the file.

There is nothing to suggest on the record that the posts, to which the person of the petitioner alongwith other 15 persons was appointed initially

vide order No.2 of 1989 dated 12th July'89 on adhoc basis for a period of three months or till the posts were filled up by the competent authority/

Subordinate Services Recruitment Board stand filled up after having undergone the exercise by the competent authority/ Subordinate Service

Recruitment Board. The issue is no more res integra because there are number of judgments delivered by this court, whereunder it has been held

that if an adhoc appointee is appointed on the condition that he/she will continue till selection is made, and such appointment is to continue till such

selection is made. This view has been held by the Division Bench 'in Writ Petition

No: 168/84 and Writ Petition No:976/85 and also by a Single Bench of this court in KLJ 1987 521 Mst. Mehbooba Akhter Vs. State & Others.

wherein it has been held that the words ""Whichever is earlier"" in order of appointment also loose significance in such peculiar circumstances of the

case. So if an appointment has been made on basis on the condition of a fixed term or on the condition that till selection/appointment by the

competent authority/Subordinate Services Recruitment Board is made with the rider 'whichever is earlier', loses its significance. The adhoc

appointee is to continue till regular selection is made and adhoc appointee is not to be substituted by another adhoc appointee i.e. against the

mandate of the Apex court judgments and also the same is not in accordance with the equity and fair play.

It may also be noted that the person of the petitioner has to continue till regular appointment to the post, which he is occupying, is made. There

is nothing to suggest from the records that the posts to which appointments on adhoc basis have been made were not existing. It seems that the

posts were existing, but where to be filled up by the competent authority/Subordinate Service Recruitment Board by undergoing the exercise of

selection, which is required in filling up the vacancies, the Administrative Department pending such selection/filling up make adhoc appointments for

a period of three months or till the posts were filled up process had directed the Superintending Engineer to by the competent authority/

Subordinate Service Recruitment Board. This order was made way back on 12th July'89 and seems to have been extended by different

subsequent orders till the impugned order on 16th July'90 seems to have been issued, wherein not only 15 persons, who were figuring in the earlier

order, have been made daily wager ""$ Rs. 18/ per day, but two more persons have been added to the list and the list has been made from 15 to

17, per Annexure p2 to the petition. It is not only present petitioner before me but some other beneficiaries under the appointment order on adhoc

basis have filed writ petitions in other wing of this court as has been pleaded, and as per information sought by this court from other wins of the

court, writ petition No:353/ 90 titled ""Syed Mohd. Yaqoob Vs. State"" and Service writ petition No:436/90 titled ""Ghulam Moniuddin Vs. State

arising out of the same order have been put to challenge. Be that as it may be, hut the fact remains that respondent state has not given any

assistance in the matter by making the records available or by filing counter or disclosing their stand in the matter. It is an admitted fact and

unrebutted by the other side that as on date the vacancies have not been filled up by the competent authority/ Subordinate Service Recruitment

Board and the petitioners, who were engaged on adhoc basis, have a right to continue as such and their service conditions whatever occurred out

of the said order of adhoc appointment could not be varied or changed from regular adhoc to a daily wager. By doing so, the pay dues which the

adhoc appointees were getting in the regular pay scale of 630940 stands varied and modified, and instead the petitioner is to draw Rs. 18/ per day

as a daily wager. This also materially affects his emoluments and pay dues, and depriving of a person of his lawful pay dues is denial of his

fundamental right as pay dues have been held as a fundamental right of an employee, so this cannot be denied to an employee without assigning any

reasonable cause or without affording an opportunity of such variation, deprival or denial.

So in these circumstances of the case and as per analysis hereinabove, the petition is allowed and the impugned order, forming Annexure p2 to

the petition, by way of a writ of Certiorari is quashed. The person of the petitioner is relegated back to the position of an adhoc appointee on the

post of Works Supervisor till the post is filled up by the competent authority/Subordinate Service Recruitment Board and the person of the

petitioner be also considered in case he applies thereto in such selection process, as and when the same is conducted. It may also be noted that his

continuance on the said post in such capacity will not and shall not give him any preferential right whatsoever on the said post over other eligible

candidates before the selection authority. He shall be considered on his own merits and eligibility in such process of selection and shall have to

vacate the post on the appointment of a duly selected/ regularly appointed candidate by the competent authority/Subordinate Services Recruitment

Board. The petitioner is also entitled to receive the emoluments and pay dues which have accrued to him on the condition that he was working in

the department and that he continues to work as such in the department.

The petition is accordingly disposed of I leave the parties to bear their respective costs.