Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Zahri. vs State Of J&K; & Ors. on 7 March, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
SWP no.517/2004 Date of decision: 07.03.2017
MP nos.02/2016
Shabir Ahmad Zahri. v. State of J&K & ors.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge
Appearing counsel:
For Petitioner: Mr. M. I. Qadri, Sr. Advocate with
Mr. Abu Bakr, Advocate.
For Respondents: Mr. M. I. Dar, AAG.
Whether approved for reporting: Yes
The petitioner, amending his writ petition, has made the following prayers:
"In the premises, it is, therefore, prayed that the Hon'ble Court may
be pleased to pass an appropriate writ, order or direction including one in
the nature of:
I. By issuance of writ of certiorari the impugned order dated 09.02.2004
bearing no.168-GAD of 2004 along with communication letter dated
19.03.2004 may either be quashed or the respondents be directed not
to apply the said Government order against the petitioner;
II. By issuance of writ of certiorari for quashing the Government order
vide No.1356-LD(Estt) of 2016 dated 31.03.2016 issued by
respondent no.1 along with letters dated 10.05.2016 and 11.08.2016
issued by respondent no.2;
III. By issuance of writ of Mandamus commanding the respondents to
declare the petitioner to have attained Quasi Permanent in the
Government service of the Law Department from July, 1998 and to
provide him all service benefits including pay, seniority, promotion,
increments etc to which petitioner will be entitled under rules;
IV. Any other order or direction which this Hon'ble Court deem just and
proper in the circumstances of the case though not prayed for in the
instant petition be also passed in favour of the petitioner."
2. The petitioner was appointed as Junior Assistant in terms of Government
order no.56 UC/LW(Estt) of 1995 dated 28.06.1995 purely on ad hoc basis with
effect from 01.07.1995 pending selection and till further orders. By a subsequent
order issued under endorsement no.UC/LD(Estt)P/SAZ/95 dated 17.01.1996, it
was ordered that that the words "ad hoc basis' in line 3 rd of order dated 28.06.1995
be read as "temporary basis pending selection".
3. While the petitioner continued to hold the aforesaid post, in the year 2001
the State Government issued order no.1285-GAD of 2001 dated 06.11.2001 where
under it was ordered that all ad hoc appointments made till the issuance of the said
order shall be considered for regularization after completion of seven years of
continuous service without reference of the posts held by them to the Service
Selection Board, subject to certain conditions mentioned in the said Government
order.
4. However, by reason of the judgment of the Supreme Court in Suraj Prakash
Gupta v State of J&K, directing the State Government to ensure that basic
recruitment rules were followed and not flouted by granting relaxation of rules
governing direct recruitment etc., read with the decisions of different Writ Benches
and Division Benches of this Court [in SWP no.1699/1991, decided on 10.10.2002;
LPA Ashok Kumar v State of J&K, decided on 28.05.2002; SWP no.116/2001,
Daleep Singh v. State of J&K decided on 15.11.2001 and some other judgments]
the Government issued order no.168-GAD of 2004 dated 09.02.2004, superseding
the earlier Government order no.1285-GAD of 2001 dated 06.11.2001, and
ordering, inter alia, that all ad hoc appointments made after 28.07.1989 and
continued till the date of issue of the said order dated 09.02.2004 and also those
adhocees, who were appointed by the General Administration Department or with
approval from the General Administration Department and continued till August
2002 or thereafter, shall be converted into contractual appointments with effect
from 1st February, 2004, and these contractual appointments shall subsist till 31st
December, 2004 or till selections against these posts were made by the concerned
selection agencies, whichever was earlier. It was further ordered that these
contractual appointees shall be required to execute an agreement in accordance
with the format appended to the Jammu and Kashmir Contractual Appointment
Rules with the concerned Drawing and Disbursing Officer upto 25.02.2004 and
that if any adhocee / contractual appointee failed to execute the agreement, he shall
cease to be in the employment of the Government. The posts held by the adhocees
were required to be referred by the concerned Administrative Departments to the
competent selection agencies by or before 29.02.2004, if such posts had not
already been referred to the selection agencies, for selection in accordance with the
rules.
5. When the aforesaid Government order no.168-GAD of 2004 dated
09.02.2004 was about to be implemented and the Law Department issued
communication no.LD(A)92/127 dated 19.03.2004 to some authorities for
immediate necessary action in respect of the officials working in their respective
offices on ad hoc basis, numerous writ petitions came to be filed by such ad
hocees in both wings of the High Court at Srinagar and Jammu seeking quashing
of the said order and further praying that the Government be directed to regularize
their services in terms of the superseded Government order no.1285-GAD of 2001
dated 06.11.2001. The petitioner also filed the present un-amended petition with
identical prayers.
6. Those petitions in bunches came up for consideration before different Writ
Court Benches of this Court. At Jammu one of the learned Writ Court Benches
decided a bunch of writ petitions on 05.04.2004 reported as Thomas Masih v.
State of J&K, 2004 (2) JKJ 197 (HC). Subsequent thereto, the petitioner's present
writ petition was disposed of on 20.05.2004 as being squarely covered and to be
governed by the decision in the above case Thomas Masih v. State of J&K. Some
other writ petitions also were disposed of pursuant to the said decision of the
Court.
7. However, the writ petitioner, feeling aggrieved of the aforesaid order dated
20.05.2004, filed LPA no.85/2004. Similarly, LPAs were filed by other writ
petitioners against the aforesaid judgment in Thomas Masih v. State of J&K and
the matters were finally referred to the Full Bench.
8. It appears that before the Full Bench, the learned counsel appearing for the
petitioner made a statement that the case of the petitioner was not connected with
the judgment rendered in Thomas Masih v. State of J&K. Consequently, the
petitioner's LPA was segregated from the bunch of appeals and was directed to be
heard separately before the Division Bench. This is borne out by the order later
passed by the Division Bench on 30.05.2016, remanding the writ petition back to
the Writ Court. The above Division Bench order dated 30.05.2016, insofar as
relevant, is quoted hereunder:
"2. The decision rendered in the batch of petitions was challenged in
the L. P. Appeals and the same were referred to Full Bench and while
hearing the batch of cases by the Full Bench, the learned senior counsel
appearing for the appellant made a statement that the case of the appellant
is not connected in the judgment rendered in SWP no.390/2004 dated
05.04.2004 and the matter in issue is entirely different. Consequently this
appeal was segregated from the batch of appeals and was directed to be
heard separately before the Division Bench.
3. Today when the appeal was taken up for hearing the learned senior
counsel appearing for the appellant submitted that the issue involved in
the writ petition against which LPA was filed, was entirely different and
the judgment passed by the learned Singh Judge in the batch of petitions
is not applicable to this case.
4. Mr. M. I. Dar, learned Additional Advocate General has fairly
conceded the contention of the learned senior counsel for the appellant
that the issue involved in the writ petition was entirely different and the
judgment passed in the batch of petitions would not be applicable to the
case of the appellant.
5. In such circumstances, the order of the Writ Court dated
20.05.2004 is set aside and the writ petition is restored to the Writ Court
for fresh consideration on merits."
(Underlining supplied)
9. It may be mentioned here that in the meantime, the State Legislature enacted
the Jammu and Kashmir Civil Service (Special Provisions) Act, 2010 (hereinafter
referred to as Special Provisions Act, 2010), providing for regularization of ad hoc,
contractual and consolidated employees in the State, subject to certain terms and
conditions mentioned therein.
10. Prior to the passing of the above order by the Division Bench, the
Government issued order no.1356-LD(Estt) of 2016 dated 31.03.2016 according
sanction to the regularization of the petitioner as Junior Assistant and relaxation in
upper age bar in favour of the petitioner under the provisions of the Special
Provisions Act, 2010. However, this fact appears not to have been brought to the
notice of the Division Bench on 30.05.2016 when the LPA was last listed before it.
11. Be that as it may, the petitioner before this Court sought permission to
amend his writ petition to challenge the aforesaid Government order no.1356-
LD(Estt) of 2016 dated 31.03.2016 and take necessary grounds in his writ petition.
He was allowed to do so. He accordingly, filed the amended writ petition with the
prayers first above mentioned.
12. To be precise, the pith and marrow of the petitioner's case is that since his
ad hoc appointment made by the initial Government order no.56 UC/LW(Estt) of
1995 dated 28.06.1995 was converted into temporary appointment by the
subsequent order issued under endorsement no.UC/LD(Estt)P/SAZ/95 dated
17.01.1996, in terms of the Rule 3 of the Jammu and Kashmir Civil Service
(Temporary Service Rules) 1961, he has to be deemed and treated to have become
quasi permanent after rendering three years' service on the post. In that context the
petitioner has challenged the Government order no.168-GAD of 2004 dated
09.02.2004, the communication no. LD(A)92/127 dated 19.03.2004 as well as the
Government order no.1356-LD(Estt) of 2016 dated 31.03.2016, regularizing the
services of the petitioner, as bad in law, violative of principles of natural justice
and Articles 14 and 16 of the Constitution of India.
13. The respondents in their reply have contested the claim of the petitioner.
14. Having heard the learned counsel and considered the matter, I am of the
view that the writ petition of the petitioner is wholly covered by the decision
rendered in Thomas Masih v. State of J&K (supra). This is borne out by
paragraphs 2, 3 and 4 of the judgment which are quoted hereunder:
"2. By virtue of the aforesaid order, it was also provided that, as a
matter of policy, the contractual appointments be made in accordance
with Rules to be notified separately. Simultaneous with the issue of the
aforesaid order, Government issued Notification SRO 255 dated 5th
August, 2003 promulgating the Jammu and Kashmir Contractual
Appointment Rules, 2003 (hereinafter referred to as the Contractual
Appointment Rules, 2003. These Rules were made applicable to the posts
notified vide Government order No.1018-GAD of 2003 dated 5th August,
2003 and to such other posts as may be notified from time to time in the
General Administration Department by Government order. These Rules,
inter alia, provide that the appointee under the Rules shall be paid a
consolidated monthly salary equivalent to the minimum of the pay scale
of the post to which he may be appointed and that he shall not be entitled
to any other allowances or monetary benefits, whatsoever. Subsequent to
the promulgation of aforesaid Rules, The Government, in supersession of
earlier Government order No.1285-GAD of 2001 dated 06.11.2001,
issued order No.168-GAD of 2004 dated 9th February, 2004 read with the
two Government orders both bearing one and the same No. and date, i.e.,
237-GAD of 2004 dated 20.2.2004, under the caption `policy relating to
ad-hoc appointments'. By virtue of the aforesaid Government Order, it
has been, inter alia, ordered that all ad hoc appointments made after
28.07.1989 and continued in service till the date of issue of the aforesaid
order and also those adhocees, who were appointed by the General
Administration Department or with approval from the General
Administration Department and continued in service till August 2002 or
thereafter, shall be converted into contractual appointments with effect
from Ist February, 2004, and these contractual appointments shall subsist
till 31st December, 2004 or till selections against these posts are made by
the concerned selection agencies, whichever be earlier. It has been further
ordered that these contractual appointees shall be required to execute an
agreement in accordance with the format appended to the Jammu and
Kashmir Contractual Appointment Rules with the concerned Drawing
and Disbursing Officer upto 25th February, 2004 and that if any adhocee /
contractual appointee failed to execute the agreement, he shall cease to be
in the employment of the Government. The posts held by the adhocees
were required to be referred by the concerned Administrative
Departments to the competent selection agencies by or before 29th
February, 2004, if such posts had not already been referred to the
selection agencies, for selection in accordance with the rules.
3. Numerous petitions have been filed before this Court by adhocees,
challenging the Government order converting their ad-hoc appointments
into contractual appointments and the direction contained therein that
such contractual appointees shall be paid a consolidated salary equal to
the minimum of the scale attached to the posts held by them with effect
from Ist February, 2004. They have sought for quashment of Government
order dated 9th February, 2004 together with the corrigendum dated 20th
February, 2004 and prayed for a direction to the concerned authorities to
regularize their services on their respective posts. Few of these writ
petitions, as delineated above, are the subject matter of decision herein.
4. The petitioners herein have been appointed on ad hoc basis either
to different non-gazetted or class IV posts. They have given particulars of
their respective orders of appointment, the authorities who issued these
orders and the allied statement of facts. The fact that some of the
adhocees are continuing since the dates just around 28th July, 1989 and
some have been appointed thereafter or even after August 2002 is rather
clearly admitted in the impugned order itself. Therefore, I need not
narrate these facts in this judgment to indicate that the petitioners had, in
fact, been appointed on ad hoc basis and are continuing eversince their
respective dates of appointment. However, there are certain aspects
pleaded in these petitions, which may have to be referred to and dealt
with at appropriate place in this judgment. When these petitions came up
for hearing on admission, the learned Advocate General appeared and
opted not to file any counter-affidavit. He submitted that out-come of
these petitions hinged only on certain settled legal propositions; therefore,
he opted to argue the cases without filing any counter-affidavit. The
learned counsel appearing on behalf of the petitioners did not object to
that course. By this common judgment, therefore, I propose to dispose of
finally all the above-mentioned petitions."
It is clearly borne out by the above paragraphs from the judgment that therein the
ad hocees had challenged the very same Government order no.168-GAD of 2004
dated 9.02.2004 converting their ad hoc appointments into contractual
appointments and sought for quashing of the same together with the corrigendum
dated 20.02.2004 and prayed for a direction to the concerned authorities to
regularize their services on their respective posts. The petitioner had made
substantially similar prayer in his writ petition, which are quoted hereunder:
"In the premises, it is, therefore, prayed:
That by issuance of a writ of certiorari the impugned order dated
09.02.04, bearing No.168-GAD of 2004, alongwith communication letter
dated 19.03.2004, may either be quashed or the respondents be directed
not to apply the said government order against the petitioner by issuance
of a writ of mandamus.
And the respondents be directed to regularise the services of the
petitioner in light of the government order dated 06.11.2001, ie., the
regularization policy of the government bearing No.1285 GAD of 2001,
and other policies in vogue for regularisation of services of ad hoc
employees as the Hon'ble Court may deem applicable in case of the
petitioner in the interests of justice.
Any other writ, order or direction which this Hon'ble Court may
deem fit in the circumstances of the case may also be passed in favour of
the petitioner and against the respondents in the interests of justice and
equity."
Obviously, therefore, insofar as the reliefs prayed for by the petitioner in his pre-
amended writ petition were concerned, the same were substantially same as had
been the subject matter in Thomas Masih v. State of J&K (supra).
15. Now, in the amended writ petition, the petitioner, apart from challenging his
own regularization order dated 31.03.2016, has added the prayer to command the
respondents to declare him to have attained quasi permanency in Government
service from July, 1998 and to provide him all service benefits. This claim of the
petitioner is founded by him on the provisions of the Jammu and Kashmir Civil
Service (Temporary Service) Rules, 1961. This specific plea was also taken by the
petitioners in Thomas Masih v. State of J&K (supra) and the learned Writ Court
thoroughly considered the issue therein and rendered its findings and decision
thereon in the judgment. Paras 9 to 16 thereof, which are relevant in this
connection, are quoted hereunder:
"9. It was next, alternatively, argued that the petitioners, who have put
in more than three years of continuous service, have acquired a right to be
declared quasi-permanent. In this connection, the learned counsel have
referred to Rule 3(1) of the Jammu and Kashmir Civil Service
(Temporary Service) Rules, 1961. To buttress this contention, the learned
counsel for the petitioners have cited and relied upon the judgment of one
of the learned Single Judges of this Court in Mohd. Yousuf Pukhta v State
of J&K, 1989 SLJ 62. This is one of the vital issues involved in these
petitions and is also linked to the first argument advanced by the learned
counsel.
10. The Jammu and Kashmir Civil Services (Temporary Service)
Rules, 1961 (hereinafter referred to as the Temporary Service Rules) were
promulgated vide Notification No.416-F dated 15th November, 1961. The
relevant provisions, which are contained in Rules 1, 2 and 3 of the
aforesaid Rules, are extracted below:
'1. (1) These rules may be called the Jammu and Kashmir
Civil Services (Temporary Service) Rules, 1961.
(2) Subject to the provisions of sub-rule (3), these rules
shall apply to all persons who hold a civil post under the
Government and who are under the rule making control of the
Government but who do not hold a lien on any post under the
Government or any other State Government or the Central
Government.
(3) Nothing in these rules shall apply to.-
(a) personnel of Jammu and Kashmir Militia;
(b) Government servants engaged on contract;
(c) Government servants not in whole time
employment;
(d) Government servants paid out of contingencies;
(e) Persons employed in work charged establishments;
(f) Such other categories of employees as may be
specified by the Government;
(g) Temporary Government servants who have earned
pension in respect of their previous military or
civil service.
Provided that the ex-servicemen who are re-employed
after their retirement from army at the age of 45 years or earlier
shall not be debarred from the benefits of these rules if they
otherwise fulfil the requirements of these rules.
2. In these rules unless the context otherwise requires
(a) Government service means temporary service under
the Government;
(b) quasi-permanent service means temporary service
commencing from the date on which a declaration issued
under rule 3 takes effect and consisting of periods of duty
and leave (other than extraordinary leave without
allowances) after that date;
(c) Deleted;
(d) temporary service means service against a temporary
post and officiating service in a permanent post under the
Government.
3.(1) A Government servant shall be eligible for being declared
as quasi-permanent if he has been in continuous Government
service for more than 3 years in a Department which is not as a
whole temporary:-
(a) employees may be declared quasi-permanent against permanent
posts or such temporary posts which have been in existence for 3 years
or more; and
(b) against such temporary posts transferred from plan to non-plan
establishment which have been in existence for three years or more on
non-plan establishment;
(c) No person may be declared quasi-permanent against a plan
post.'
11. From a bare perusal of the aforesaid Rules, among other things, it
emerges that:
(i) in terms of sub-rule (2) of Rule 1, except the categories specified in
sub-rule (3), the Temporary Service Rules apply to all such persons who
hold a civil post;
(ii) in terms of clause (f) of sub-rule (3), the Government has power to
bring out of the purview of these rules such other categories of employees
as may be specified;
(iii) the Rules do not prescribe for temporary appointments;
(iv) in terms of Rule 3(1), if a person has been in continuous
Government service for more than 3 years, he shall be eligible for being
declared as quasi-permanent.
(v) sub-rule 3(1)(a) confers a discretion on the competent authority to
declare an employee as quasi-permanent against a permanent or a
temporary post.
12. Though a relevant question arises whether an adhocee holds a civil
post, yet, at first, I deem it appropriate to deal with the argument of the
learned counsel that Rule 3(1) of the Temporary Service Rules, 1961 has
created a vested right in those of the adhocees who have been in
continuous ad hoc appointment for more than three years for being
declared as quasi-permanent employees.
13. The Temporary Service Rules, 1961 do not prescribe for temporary
appointments. Temporary appointments are provided under and governed
by Rule 14 of the Classification, Control and Appeal, 1956. Rule 14 of
the Classification, Control and Appeal Rules, 1956 was amended vide
Notification No. 291 dated 28th July, 1989. Prior to its amendment, it
read as under:
'14. Temporary appointments. (1) 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 a 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 inconvenience, the appointing authority may
appoint a person otherwise than in accordance with these rules
temporarily until a person is appointed in accordance with these
rules but such temporary appointment shall in no case exceed
three months on each occasion.
(2) Every appointment made under sub-rule (1) together with
all the particulars relating to the persons so appointed, namely,
the date of appointment, the duration of the vacancy and the
period or periods, if any, for which the same person had
previously held a post borne on the cadre of the same service,
class or category, the nature of the emergency or inconvenience
and the reasons for the appointment shall be reported without
delay to the Minister-in-charge, if the order is passed by a lower
authority.
(3) A person appointed under sub-rule (1) shall be replaced as
soon as possible by a member of the service or a candidate
qualified and considered fit to hold the post under these rules.
(4) A person appointed under sub-rule (1) shall not be
regarded as a probationer in such service, class or category, or be
entitled by reason only of such appointment to any preferential
claim to future appointment to such service, class or category.'
The amended Rule 14 of the Classification Control and Appeal Rules
reads as under:
'14. Temporary appointments. (1) 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 inconvenience, the appointing authority may
appoint a person otherwise than in accordance with these rules
temporarily with the prior approval of the Chief Minister in Co-
ordination 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 not more than nine months in
all.
(2) A person appointed under sub-rule (1) shall be replaced as
soon as possible by a member of the service or a candidate
qualified and considered fit to hold the post under these rules.
(3) A person appointed under sub-rule (1) shall not be
regarded as a probationer in such service, class or category, or be
entitled by reason only of such appointment to any preferential
claim to future appointment to such service, class or category.'
(Underlining supplied)
14. As is seen, the pre-amended Rule 14 of the Classification, Control
and Appeal Rules, 1956 envisaged continuation of an adhocee until a
person was appointed in accordance with the Rules. Cases could be
conceived that an adhocee was continued for more than three years. A
protection of deemed eligibility for being declared as quasi-permanent,
subject to the conditions as mentioned in Rule 3A, was carved out in
respect of such adhocees in terms of Rule 3(1) of the Temporary Service
Rules, 1961. However, whereas the pre-amended Rule 14 did not
prescribe any limitation on the total period an adhocee could continue,
the amended Rule 14 expressly bars continuation of an ad-hoc
appointment beyond the period of nine months. There is no other
provision on the subject either in the Classification, Control and Appeal
Rules or the Temporary Service Rules, 1961. Therefore, Rule 3(1) of the
Temporary service Rules, 1961 has to be read together with Rule 14 of
the Classification, Control and Appeal Rules. Reading the two provisions
together, since the continuation of ad hoc appointment beyond nine
months has been expressly barred, as a necessary implication, the deemed
eligibility that was envisaged by Rule 3(1) of Temporary Service Rules,
1961 becomes redundant. In other words, Rule 3(1) of the Temporary
Service Rules, 1961 has no application to persons appointed on ad-hoc
basis. Continuation of a person beyond nine months, dehors the express
provision of Rule 14 of the Classification, Control and Appeal Rules, will
not alter the aforesaid legal implication. Consequently, no authority can
exercise the discretion of declaration as quasi-permanent conferred under
Rule 3 (1)(a) of Temporary Service Rules, 1961 on such authority vis-à-
vis a person appointed on ad hoc basis under the amended Rule 14 of
Classification, Control and Appeal Rules, 1956.
15. It be further seen that Rule 3(1) says, a Government servant shall
be eligible for being declared as quasi permanent. Government service
has been defined to mean temporary service, which in turn has been
defined to mean even officiating service in a permanent post. It is not
shown by any of the petitioners that he has been rendering officiating
service against a permanent post. Even if it were assumed that the
petitioners have been officiating against permanent posts and that Rule 3
has still any application to ad hoc appointees, it is axiomatic from a
reading of Rule 3(1) that it lays down only the eligibility criterion of such
an employee for being considered to be declared as quasi-permanent. If
an ad-hoc employee fulfilled the eligibility criterion as laid down in Rule
3(1), that fact by itself would not create a right, muchless a vested right,
in him to be declared as quasi-permanent. Such an employee had to fulfill
other conditions and the competent authority had to be satisfied that the
employee at the time of entry into such service possessed the minimum
service age, qualification, required standard of character and antecedents
etc. The competent authority had also to issue a declaration regarding his
suitability, work and conduct during the past period of temporary service.
In any case, Rule 3(1) does not envisage creation of any right in such an
employee to be declared as quasi-permanent. The relevant provision, i.e.,
sub-rule 3(1)(a) confers only a discretion on the competent authority to
declare an employee eligible under sub-rule 3(1) of the Rules as quasi-
permanent. It is only if it were shown that the competent authority had, in
fact, exercised this discretion in favour of similarly circumstanced person
or persons, as the petitioners, that the petitioners could make a grievance
of denial of equal treatment or seek an equal treatment. That is not the
case; the petitioners herein have not brought anything on record to show
that any of the ad-hoc appointees engaged after 28th July, 1989, the date
when Rule 14 of the Classification, Control and Appeal Rules was
amended, has been declared as quasi-permanent under Rule 3(1)(a) of the
Temporary Service Rules, 1961.
16. Coming again to the first argument of learned counsel for the
petitioners as to their position being similar to the adhocees governed by
Government order dated 11th September, 1989, the adhocees appointed
prior to 28th July, 1989 were governed by the pre-amended Rule 14
which, in its relevant texture, was entirely different from the amended
provision of Rule 14. Therefore, it cannot be said that the two sets of
adhocees one governed by the pre-amended provision and the other
governed by the amended provision constitute one class. Where the
appointments are governed by two different sets of Rules, with two
different relevant textures, the appointees would not constitute one single
class. The two stand on two different footings and, therefore, constitute
two different classes. Judgment in Mohd. Yousuf Pukhta v State of J&K
(supra), cited and relied upon by the learned counsel, is not attracted
herein. Firstly because that judgment related to an adhocee governed by
the pre-amended Rule 14; secondly that judgment is a judgment per
incurium because the Hon'ble Judge had failed to take note of the settled
position of law, as enunciated by the Apex Court holding the field;
thirdly, the provisions of Temporary Service Rules, 1961 were not
directly involved therein nor referred to in the judgment and fourthly the
petitioner in that petition was a Peon working in the Department where
25% of the posts of Junior Assistants were reserved for in-service
candidates. The petitioner therein was otherwise eligible and entitled to
be promoted to the post of Junior Assistant as an in-service candidate.
Therefore, the judgment does not help the petitioners herein. Similarly,
the judgment in Raj Nath v State of J&K, 1993 KLJ 410 is not applicable
because that case basically pertained to daily rated workers and, in any
case, there was a direction contained in that judgment to the Government
to frame a policy which was put in place by the State Government by
virtue of SRO 64 of 1994. Consequently, I am of the view that the
Temporary Service Rules, 1961 have no application to the case of the
petitioners. In that view of the matter, the argument advanced by the
learned counsel that the petitioners have acquired a right to be declared as
quasi-permanent under Rule 3(1)(a) of the Temporary Service Rules,
1961 is misconceived and untenable. Since I have come to the conclusion
that the Temporary Service Rules, 1961 are not attracted to these cases, I
need not go to the point whether the petitioners can be said to be holding
civil posts."
16 So far as the Government order 168-GAD of 2004 dated 09.02.2004 is
concerned, which is challenged herein, the said order was challenged in the
aforesaid writ petitions as well and the learned Court had returned a finding
thereon. Paras 24 and 25 of the judgment in that behalf may be extracted
hereunder:
"24. Coming to the impugned order dated 9th February, 2004, it is not
shown to have been issued pursuant to Rule 3 of the aforesaid Rules. It is
based on Cabinet Decision No.27/2 dated 25th January, 2004 adopting a
policy relating to settlement of ad hoc appointments. Even if it is assumed
that by virtue of the impugned order, the ad-hoc appointments of the
petitioners have been converted into contractual appointments in
pursuance of Rule 3 of the Rules and, therefore, does not constitute a
policy, even that course was available to the Government since
appointments of the petitioners were not governed by any Rules or a valid
Government order, their term of appointment under Rule 14 of the
Classification, Control and Appeals Rules, 1956 having come to an end
long back. In normal course, as per the aforesaid Rules, the adhocees,
even for contractual appointment, were required to face the due process
of selection as prescribed and described above. The adhocees have not
been made liable or asked to underego this process. As a matter of policy,
the Government has extended to them the benefit of deemed selection
inasmuch as they have been ordered to continue on contractual
appointment basis upto 31st December, 2004 and have been directed to
enter into agreements in the prescribed form. It may be reiterated that
under sub-rule (3) of Rule 4 of the Rules, it is only if a person is selected
by the prescribed Selection Committee after undergoing the selection
process and appointed that he is required to execute the agreement in
question. Further, for purposes of this contractual appointment, the
condition of eligibility prescribed under Rule 5 of the Rules has not been
enforced. Since these adhocees, who had no right to continue against the
respective posts, could not even be appointed on contractual basis dehors
the Contractual Appointment Rules, 2003, the Government has taken a
policy decision to extend such a benefit to them. The policy has to be
read in that context. Therefore, it is imaginable why the order has been
issued as a matter of policy lest the contractual appointments of the
adhocees, dehors the Contractual Appointment Rules, 2003 as well,
should be challenged by eligible candidates desirous of seeking such
contractual jobs. In that view of the matter, I am of the view that to that
extent the Government has been fair and reasonable enough in extending
this benefit to the adhocees. Before proceeding further I deem it relevant
to quote hereunder paragraph 12 onwards of the impugned order:
...
...
25. The object of the aforesaid order is clearly indicated in clauses (iv),
(v) and (v) of the operative portion thereof, as quoted above, i.e., first, the posts held by the adhocees have been ordered to be referred to the competent selection agencies by 29th February, 2004. This order has been made applicable to all class or category of posts, including the Gazetted posts, non-gazetted posts and Class IV posts. Such a course is totally lawful and according to the constitutional requirements. Selection of candidates to the three categories of posts , namely, Gazetted posts, non- gazetted posts and Class IV posts, are made by three different agencies, namely, the State Public Service Commission vis-avis the Gazetted posts, the Service Selection Board for non-gazetted posts and District Level Committees for Class IV posts. Under clause (v) it has been specifically said that the adhocees who may have crossed the upper age limit prescribed for Government service and who may apply before the selection agencies shall also be considered by such selection agencies and their upper age limit shall be deemed to have been relaxed to the extent required for this purpose. In this manner, the Government has taken due care that each such adhocee gets a fair opportunity of competing in the selection process. As regards the Class IV employees, it has been ordered that a separate mechanism for selection of adhocees shall be formulated. According to the learned Advocate General, this scheme has not so far been framed and the reason put forth is the enforcement of Model Code of Conduct. I have gone through the judgments cited and relied upon by the learned counsel for the petitioners. The latest law on the subject is that the process of recruitment prescribed by statutory rules cannot be bypassed by issuing directions for regularization of the services of the ad hoc employees who had come to the service through back-door entry. Even the leverage extended in extraordinary cases earlier by the Courts by directing the Government to frame a scheme and regularize such employees is not being insisted now. The emphasis of the law, as it exists now, is on entrusting such matters to the concerned selection authority. Reference in this regard may be had to J&K Public Service Commission v. Dr. Narinder Mohan, (1994) 2 SCC 630; Dr. Surrinder Singh Jamwala v. State of J&K, (1996) 9 SCC 619;Dr. Meera Massey v. Dr. S. R. Mehrotra, (1998) SCC 88; P. Ravindran v Union Territory of Pondicherry, (1997) 1 SCC 350 and Suraj Parkash Gupta v State of J&K, 2000) SCC
561. Therefore, I am of the opinion that various directions and decisions taken by virtue of the impugned order, as referred to above, are in line with the mandate of law."
The judgment so rendered by the learned Writ Court squarely covers the pleas raised by the petitioner in his writ petition.
17. Apart from the above certain new developments have also taken place and intervened in the meantime. As mentioned above, the State Legislature has enacted the Special Provisions Act, 2010 - an Act providing for regularization of the employees appointed on ad hoc, contractual or consolidated basis. In terms of the Application Provision of the Special Provisions Act, 2010, viz., Section 3 thereof, its provisions apply to such posts under the Government as were held by any person having been appointed on ad hoc or contractual basis, including those appointed on consolidated pay. That would undoubtedly include the post held by the petitioner. Further, Section 5 of the Special Provisions Act, 2010 provides that notwithstanding anything to the contrary contained in any law for the time being in force or any judgment or order of any court or tribunal, the ad hoc or contractual or consolidated appointees referred to in Section 3 shall be regularized on fulfillment of the conditions enumerated thereunder. The first proviso thereunder provides that the regularization of the eligible ad hoc or contractual or consolidated appointees under the Special Provisions Act, 2010 shall have effect only from the date of such regularization, irrespective of the fact that such appointees have completed more than seven years of service on the appointed date or thereafter, but before such regularization.
18. In view of the above clear provisions of the Special Provisions Act, 2010, holding the field, the claim of the petitioner would be governed by the provisions of the said Special Provisions Act, 2010 and his prayer seeking regularization under the Government order of 2001 is antithetic to the provisions of the Special Provisions Act, 2010 and, therefore, wholly misconceived. If the petitioner thought that by any standards his case would be governed by the 2001 order and that the provisions of the Special Provisions Act, 2010 had taken away his any right, then he ought to challenge the vires of the provisions of the Special Provisions Act, 2010. In face of the provisions of the Special Provisions Act, 2010, the petitioner cannot claim import of the 2001 order in his favour.
19. There yet another important factor: The judgment in Thomas Masih v State of J&K (supra) was upheld in some LPAs, while some other LPAs were pending. When this fact was brought to the notice of a Division Bench of the Court on 14.09.2004, it made a reference to the Full Bench in the following terms:
"When the hearing of these cases was taken up our attention was drawn to the order dated 19.07.2004 in LPA(SW) no.104/2004 (Shafiqa Begum v. State and others) and other analogous appeals whereby the appeals arising from the judgment in the case titled Thomas Masih and others v. State of J&K giving rise to some of the appeals before us, were dismissed and the judgment of learned Single Judge was upheld. Though the said order does not cover the points which are sought to be canvassed in these appeals as indicated in course of hearing earlier, we are of the view that it would be in the fitness of things that the appellants' cases are heard by a larger Bench."
20. The said appeals under Reference have been disposed of by the Full Bench by order dated 18.05.2016 on the statement of the counsel appearing in those appeals that the appellants' services stand regularized pursuant to the Special Provisions Act, 2010; thereby the judgment rendered by the learned Single Judge in Thomas Masih v State of J&K (supra) has remained intact.
21. The statement made by the two counsels appearing for the parties before the Division Bench that the case of the petitioner was different from that involved in Thomas Masih v State of J&K (supra). In any case, the claim put forward by the petitioner is unsustainable.
22. Looking at the matter on the anvil of the facts and circumstances as they stand, Government order no.168-GAD of 2004 dated 09.02.2004 read with any communication issued pursuant thereto are no more operational. After the enactment of the Jammu and Kashmir Civil Service (Special Provisions) Act, 2010 by the State Legislature, the Government orders on the subject, be it Government order no.1285-GAD of 2001 dated 06.11.2001 or Government order no.168-GAD of 2004 dated 09.02.2004, have lost their implication and operation. These orders are immaterial now and nobody can claim any harm by, or be granted any benefit under, either of these orders. The claim of the petitioner that he having acquired the quasi permanent character pursuant to the 1961 Temporary Appointment Rules, in view of the findings recorded in Thomas Masih v State of J&K (supra) is equally grossly misconceived.
23. In light of the above, the petitioner having failed to make out a case to entitle him to the reliefs claimed and prayed for by him, this petition is dismissed together with the connected MP.
24. No order as to costs.
(Ali Mohammad Magrey) Judge Srinagar, 07.03.2017 Syed Ayaz Hussain, Secretary