Jammu & Kashmir High Court
Mufti Imtiaz vs State Of J&K And Ors. on 4 February, 2003
Equivalent citations: 2003(1)JKJ505
Bench: R.C. Gandhi, Permod Kohli
JUDGMENT
Gandhi J.
1. This Letters Patent Appeal has been preferred against the judgment dated 12th December, 2002 passed by the learned Single Judge in SWP No. 1516/2002 whereby the writ petition of the appellant has been dismissed. A few facts necessary for disposal of the appeal are that the appellant (writ petitioner) was appointed by respondent No. 1 vide Government order No. 91-HME of 2002 dated 24th January, 2002 as Drug Inspector on consolidated salary of Rs. 5000/- per month for a period of one year or till such time the post is filled up under rules which ever is earlier. During the currency of this contractual engagement, the appellant approached the court by means of SWP No. 1516/ 2002 seeking issuance of writ of mandamus to:
i) Consider the appellant (writ petitioner) along with all eligible candidates for appointment to the post of Drug Inspector;
ii) take into consideration the experience gained by the appellant while making the selection;and
iii) prohibit the respondents from causing any interference in the service of the appellant till the selection process completed and also to release his salary uninterruptedly.
2. The learned Single Judge after consideration of the submissions of the learned counsel for the appellant has dismissed the writ petition vide the order under appeal, observing that no fundamental right of the appellant has been violated.
3. Aggrieved by the order of the learned Single Judge, the appellant has challenged it on the grounds that the appellant's appointment though is for one year, yet contains a stipulation for his continuation till selection have refereed the post to the Service Selection Board and the appellant has also applied for his selection. The selection has not so far been made. Therefore, the appellant in terms of the appointment order, should have been continued. He has also relied upon the judgment delivered by this Court in a batch of writ petitions filed by the ad-hoe employees titled Muhammad Sikandar v. State of J&K and Ors. decided on 10th October, 2002, wherein a direction has been issued for continuation of the ad-hoe employees till the selection is made which has been directed to be made by ending June, 2003. It is also one of the grounds that the expression 'whichever is earlier' has no significance and therefore the pettioner was to be continued till the selection is made.
4. We have heard learned counsel for the appellant.
Mr. Haqani, learned for the appellant reiterating the grounds set out in the memorandum of the appeal, has submitted that the appointment of the appellant could not be termed as being for one year only but was required to be continued till selection is made as stipulated in the appointment order. It is not in dispute that the appellant has been appointed for a period of one year on consolidated salary of Rs.5,000/ - or till such time the post is filed up under rules, whichever is earlier. The appointment of the appellant is not governed under Rule 14 of the Jammu and Kashmir Civil Services (classification, Control and Appeal) Rules, 1956 (hereinafter referred to as "the CCA Rules") which provides for filling up of posts on ad-hoc basis for a period of three months extendable up to nine months. The appellant has been appointed for a period of one year, therefore, it cannot be said that the appellant has been appointed on ad-hoc basis in exercise of the power under Rule 14 of the CCA Rules. The appointment of the appellant is contractual and has elapsed by efflux of time. The terms of the appointment has been accepted by the appellant. The stipu-
lation contained in the appointment order that 'the appointment is for one year or till such time the post is filled up under rules, which ever is earlier' has to be given a harmonious construction, which means that in case the post is filled up before the expiry of the period of one year the appointment of the appellant will come to an end on the happening of selection against the post. Therefore the argument of the learned counsel for the appellant that the appointment of the appellant was to continue till the post is filled up by selection under rules has no substance. The stipulation 'whichever is earlier' postulates that in case the appointment on the post is made on selection within one year the appellant would have no right to continue till the completion of one year. The expression 'or till such time' cannot be said to mean that the appointment will be treated as extended beyond the period of one year as the appointment order has not been couched in such a language. The stipulation has to be read in conjunction. The words 'whichever is earlier' places rider or reducing and curtailing the period of appointment of the appointee, if the post is filled up under rules even during the currency of the period of appointment mentioned in the order. Filling up of the post under rules further does not mean only by selection of a suitable candidate, it may be filled up even by transfer.
5. Learned consel for the appellant has placed reliance on the judgement of this Court in Mst. Mehbooba Akhtar v. State of J&K, 1988 SLJ 138; Mohd Yousuf Pukhta v. State of J&K, 1989 SLJ 62 and Khalida v. State of J&K 1989 SLJ 337 to impress upon this Court that the stipulation in the appointment order 'Whichever is earlier' has no significance. The judgments cited at the Bar besides being Single Bench judgments, deal with the case of ad-hoc appointments and not contractual appointment. Ad-hoc appointment is governed by statutory rules where as the contractual appointment is governed by the terms of appointment order accepted by the parties. It is accepted by the appellant that his appointment will be for one year or till it is filled up under rules, whichever is earlier, which means that if it is filled up before the completion of the period of appointment of one year, the appointment of the appellant from the date of filling up of the post will cease to operate. The appellant, therefore, cannot get the benefit of these judgments, which do not deal with a contractual appointee. The judgment in Mohd Yousuf Pukhtav. State of J&K (supra) is also not relevant on facts. Learned counsel for the appellant has also relied upon the judgment delivered in batch of writ petitions Muhammad Sikandar Dar v. State of J&K and Ors. (SWP No. 1699/91) decided on 10th October, 2002. This judgment also deal with ad-hoc appointments and for the same reason directions issued in this judgment cannot be made applicable to the case of the apellant, being distinct and distinguishable. It may be pertinent to observe here that a Division Bench of this Court in Aijaz Hussain Zargar v. State of J&K and Ors., LPA No. 101/2002 decided on 22nd July, 2002, while dealing with the case of ad-hoc appointee seeking direction for regularization and extension of his appointment, has observed that the judgment of the learned Single Judge in Mohd Yousuf Pukhta v. State of J&K (supra) is not the correct statement of law.
6. It is also submitted by the learned counsel for the appellant that the appellant is still continuing against the post and the Recruitment Board, While making the selections should consider the experience gained by him against the post. The suitability of a candidate for the post is to be adjudged by the selection authority on the basis of the uniform criteria adopted by it. Learned counsel for the appellant has not shown any law in support of his plea that such a direction can be issued to the selection authority to deviate from the uniform criteria in a particular case, as herein, while making the selection. The direction might have been issued in a particular case to meet the ends of justice and that remains confined to that case only and cannot be said to be a precedent to be enforced in the court of law, particularly to seek a direction to the selection authority to deviate from the uniform criteria and adopt a different criteria for the appellant. If such a direction is issued, it will create different yardstick and criteria for selection of the appellant vis-a-vis other candidates for the same post. There is no justification in this plea to issue such a direction.
7. We do not see any ground to interfere with the order of the learned Single Judge. The appeal is accordingly dismissed.