Jammu & Kashmir High Court - Srinagar Bench
Petitioner(S) vs State And Others on 25 July, 2019
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
Serial no. 72
Supplementary
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
WP (C) no. 2378/2019 c/w
WP (C) no. 1743/2019 &
WP (C) no. 2513/2019
i) Mohammad Akram Lone
ii) Arshad Hussain Bhat
iii) Masarat Majeed and others
.... Petitioner(s)
Through:- Mr
Jahangir Iqbal, Sr. Advocate with
Ms Humaira Shafi, Advocate (in 2378 & 1743/2019)
Mr F. A. Bhat, Advocate (in 2513/2019)
v/s
State and others
.... Respondent(s)
Through:- Mr
D. C. Raina, Advocate General with
Mr Asif Maqbool, Dy. AG
CORAM:
HON'BLE MR JUSTICE ALI MOHAMMAD MAGREY, JUDGE
ORDER
25.07.2019 In terms of order dated 23rd July, 2019, the learned Advocate General was requested to assist the court as regards the challenge made to the Clause
(b) of Section 3 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, for short Act of 2010, by the petitioners who claim to be working as Lecturers in various degree colleges of the State for more than 7 years on academic arrangement.
Mr D. C. Raina, learned Advocate General, submits that the relief prayed for by the petitioners to the effect of declaring the clause (b) of Section 3 of the Act of 2010, which provides for persons appointed on tenure posts co-terminus with the life of the project or Scheme of the State or Central Government, as the case may be, and those appointed on academic arrangement for a fixed term in any Government Department, to be ultra vires the Constitution of India as it offends the fundamental right of the petitioners as guaranteed under Article 14 and 16 of the Constitution of India, is not maintainable as this Court has already taken a view upholding the provision in the judgment as is referred to in the order dated 23 rd July, 2019. The order dated 23.7.2019, for facility of reference, is reproduced hereunder:
"Petitioners claim to be working in different colleges of the Higher Education Department of Government of Jammu and Kashmir pre and post enactment of Jammu & Kashmir Civil Services (Special Provisions) Act 2010, against academic arrangement. The petitioners have challenged clause (b) of Section 3 of the Civil Services (Special Provisions) Act, 2010 and seek declaration of the provision as ultra-virus to the Constitution of India with reference to violation of the fundamental rights guaranteed under Article 14 and 16 of the Constitution of India. Petitioners are further seeking relief with reference to commanding the respondents to consider the case of the petitioners for regularization as per mandate of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010. They further seek a direction that the respondents shall be restrained from replacing/substituting the petitioners by any other academic arrangement/appointments. The issue with reference to the entitlement of incumbents appointed against academic arrangements stands considered by this Bench in number of writ petitions bearing No.WP (C) 1978/2019 titled Masarat Amin and ors. v/s State of J&K & others and SWP No.306/2019 titled Dr. Sartaj Ahmad Ganai and ors. v/s State of J&K and others resulting in dismissal of the writ petitions vide order dated 07.06.2019 and 20.02.2019 respectively.
While this matter was being argued by Mr. F.A.Bhat, learned counsel for the petitioner, Mr. Jehangir Iqbal Ganai learned senior counsel who was incidentally available in the court reminded about the writ petition bearing No.WP (C) No.1743/2019 which is filed on the similar facts and law for the similar relief and directed to be listed on Thursday. Mr. Jehangir Iqbal has made reference to section 3(b) of the Jammu & Kashmir Civil Services (Special Provisions) Act, 2010 which is extracted as under:
"persons appointed on tenure posts co-
terminus with the life of the project or Scheme of the State or Central Government, as the case may be, and those appointed on academic arrangement for a fixed term in any government Department."
It provides that the provisions of the Act shall not apply to such posts in the Government which are held by the persons engaged on academic arrangement for a fixed term in any government Department.
While examining the judgment delivered by this Bench in writ petition bearing No.SWP No.306/2019 titled Dr. Sartaj Ahmad Ganai and ors. v/s State of J&K and others, it is noticed that the relief prayed in the writ petition is same as in the case decided. When asked, Mr. Jehangir Iqbal, submits that the judgment is not applicable as the date of engagement of the petitioner who are engaged admittedly is before the enactment, therefore are entitled for the benefit. He also submits that a proposal was initiated by Higher Education Department of Jammu & Kashmir for seeking exclusion of the application of 3 (b) and inclusion of the academic arrangements made in the colleges for regularization. Since the challenge is made to clause (b) of Section 3 of the Act, therefore, it shall be advantageous to have the assistance of the learned Advocate General in the matter.
List this matter on Thursday i.e 25.07.2019 alongwith the WP (C) No.1743/2019.
Learned Advocate General further submits that on the strength of the law laid down by the Hon'ble Supreme Court in a case reported as AIR 1994 Vol. 81 S.C, p. 1808, titled J&K Public Service Commission, etc., v. Dr. Narinder Mohan and others, there is no scope for the petitioners to seek regularization against the post of Lecturer which is a gazetted post. He further submits that the method of recruitment against the posts in question in the degree colleges is 100% by direct recruitment in terms of Education (Gazetted) College Services Recruitment Rules, 2008.
Learned Advocate General further submits that in terms of the Jammu & Kashmir Constitutional Scheme, all the gazetted posts are required to be filled up by the Government on the recommendations of the Public Service Commission upon being referred to it by evolving the process of selection. He then referred to Section 128 and 129 of the Constitution of Jammu and Kashmir to indicate the constitution and functioning of the Public Service Commission.
Learned Advocate General submits that there is no scope for the Court to extend the period of tenure appointment of the petitioners beyond the term as specified in the advertisement and contained in the order of engagement. He further submits that the term of appointment of the petitioners is only for an academic year.
Learned Advocate General referred to paragraphs 8 and 10 of the judgment delivered in case titled J&K Public Service Commission, etc., v. Dr Narinder Mohan and others, reported as AIR 1994 SC, 1808. Paragraphs 8 and 10 of the said judgment, for facility of reference are taken note of hereunder:-
"8. It is true that under Article 320 of the Constitution (Section 133 of the Jammu and Kashmir Constitution) by operation of the proviso, it shall not be necessary for the President or the Governor, as the case may be, to consult the PSC in respect of any service or post in connection with the affairs of the Union or the State, as the case may be, either in general or in particular class or classes or any particular circumstances, but clause (1) of Article 320 postulates that it shall be the duty of the PSC to conduct examinations for appointment of service of the Union and the service of the State, respectively, and to assist the State for recruitment to any service for which the candidates fulfilling the qualifications are required. Though it is settled law that consultation is not mandatory but as held by this Court in Jatinder Kumar v. State of Punjab3 that the establishment of an independent body like PSC, is to ensure selection of best available persons for appointment to a post to avoid arbitrariness and nepotism in the matter of appointment. Commission is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. Whenever the Government is required to make an appointment to a high public office, it is required to consult the PSC. The selection has to be made by the PSC and the Government has to fill up posts by appointing those selected and recommended by the Commission, adhering to the order of merit in the list of candidates sent by the PSC. The selection by the Commission, however, is only a recommendation of the Commission and the final authority for appointment is the Government. Government cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against existing or anticipated vacancies, does not create a right to be appointed to the post which can be enforced by a mandamus. In M.C. Bindal v. R.C. Singh4 this Court held that a candidate in order to be considered for appointment for a post must have the requisite qualifications. Under Article 320(3)(a) and (b), it is the duty of the PSC to consider and to get itself satisfied as to which of the candidates have fulfilled the requisites specified in the advertisement. It is the constitutional duty of the Commission under Article 320 to recommend the candidates fulfilling all the requisite qualifications for the posts to the Government for being considered for appointment to the post concerned. In Keshav Chandra Joshi v. Union of India5 one of the contentions raised was that Rule 27 of the U.P. Forest Service Rules, 1952, empowers the Government to relax any conditions of service to remove undue hardship and the appointments of the ad hoc promotion is in 3 (1985) 1 SCC 122: 1985 SCC (L&S) 174: (1985) 1 SCR 899 4 (1989) 1 SCC 136: 1989 SCC (L&S) 86: (1988) 8 ATC 944: AIR 1989 SC 134 5 1992 Supp (1) SCC 272: 1993 SCC (L&S) 694: (1993) 24 ATC accordance with Rule 27. Considering the contention, this Court held that: (SCC p. 288, para
33) "There is a distinction between 'rules of recruitment' and 'conditions of service'. To become a member of the service in a substantive capacity, appointment by the Governor shall be preceded by selection of a direct recruit by the Public Service Commission; undergoing training in Forestry for two years in the college and passing Diploma are conditions precedent. If the contention of the promotees that rules of recruitment are conditions of service is accepted, it would be open to the Governor to say that 'I like the face of "A" and I am satisfied that he is fit to be appointed; I dispense with the rules of recruitment and probation and appoint "A"
straightaway to the service in a substantive capacity as Assistant Conservator of Forest."' Therefore, it was held that rule of relaxation cannot be exercised in matters of recruitment. It would be only to remove undue hardship that the power to relax the conditions of service should be exercised and rules relating to recruitment of the service should not be relaxed. In Syed Khalid Rizvi v. Union of India6 (C.A. No. 823 of 1989 etc. dated November 20, 1992), it was reiterated that appointment to a post in accordance with the Rules is a precondition and the conditions of the rules of recruitment cannot be relaxed. Rule 3 of the Residuary Rules, though empowers the Government to relax the rules, it cannot be availed nor have power to relax conditions of recruitment. In A.K. Bhatnagar v. Union of India7 this Court held that from among temporary appointees, those selected by UPSC became seniors according to the merit determined by the PSC and the non-selectees would become juniors to them though the non-selectees were seniors as temporary appointees.
10. The next question is whether the direction given by the High Court to regularise the services of the respondents is valid in law. It is true that the ad hoc appointees have been continuing from 1986 onwards but their appointments are de hors the Rules. Rules prescribe only two modes of recruitment, namely, direct recruitment or promotion by selection. As regards the lecturers are concerned, it is only by direct recruitment. The mode of recruitment suggested by the High Court, namely, regularisation by placing the service record of the respondents before the PSC and consideration thereof and PSC's recommendation in that behalf is only a hybrid procedure not contemplated by the Rules. Moreover, when the Rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply for, by qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Articles 14 and 16 and in violation to the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the Constitution and the law."
Mr Jahangir Iqbal Ganai, learned Senior counsel, when asked submits that the judgment rendered by this court in the cases where the petitioners were also seeking the relief of regularization against the post of Lecturer on the basis of having worked for academic arrangement are distinguishable on facts. He further elaborates that the distinguishable feature has reference to the status of the petitioners vis-à-vis their continuation for indefinite period of more than seven years as they were engaged much before the enactment of the Act of 2010 and against the clear vacancy. He further submits that the judgments passed by this court and pleaded by the learned Advocate General have been passed in persona and not in ream.
He further submits that the declaration with reference to the challenge to clause (b) of Section 3 of the Act of 2010 is sought on varied grounds with particular reference to the fact that the Legislators while considering the cases of ad hocees, contractuals and consolidated employees have excluded the petitioners who are working on academic arrangement against available posts being equally circumstanced and placed, therefore, clause in question hits the fundamental rights of the petitioners as guaranteed under Article 14 and 16 of the Constitution. He further submits that the clause in question is manifestly arbitrary. In support of his submissions, the learned senior counsel referred to and relied upon (2019) 3 SCC, 39 to indicate that the Hon'ble Supreme Court has laid down a law that the Act that is arbitrary requires to be struck down.
Paragraph 26 being relevant, is taken note of hereunder:
"26. Thereafter, our learned Brother referred to the authorities in State of Mysore v. S. R. Jayaram, Indira Nehru Gandhi v. Raj Narain, E.P. Royappa v. State of T.N, Maneka Gandhi v. Union of India, A. L. Kalra v. Project & Equipment Corpn. Of India Ltd., Ajay Hasia v. Khalid Mujib Sehravardi, K.R. Lakshmanan v. State of T.N and two other Constitution Bench judgments in Mithu v. State of Punjab and Sunil Batra v. Delhi Admn. and, eventually, came to hold thus: (Shayara Bano case, SCC p. 87, para 82)
82. It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be "arbitrary".
And again: (SCC p. 99, para 101)
101....The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article
14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and / or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14"
Learned senior counsel further referred to and relied upon (2017) 9 SCC, paragraphs 87 and 101 in support of his submissions.
Mr F. A. Bhat, learned counsel for the petitioner in SWP no. 2513/2019 also argued on the same lines as Mr Jahangir learned senior counsel did.
Since this Bench has already taken a view with reference to entitlement of the academic arrangement appointees and rejected their claim, but in order to ensure that the contentions raised by the petitioners in these petitions with particular reference that the judgments already delivered by this Bench are based on different facts and questions of law and the same being in persona and not in ream, it is thought imperative to have the response of the Government.
Notice in all the writ petitions is waived by Mr Asif Maqbool, Dy.AG.
He shall file reply within two weeks. The assisting counsel with the learned Advocate General shall ensure furnishing of the details of the petitioners as regards their spell of service specifying clearly their date of entry and continuation.
Learned Advocate General submits that since the court is examining the issue for the reliefs prayed, it shall be advantageous that all the similar petitions be clubbed together to have a uniform decision in all the matters. Let Mr Asif Maqbool, Dy.AG, furnish details of all such petitions to the Registrar Judicial who shall, on receipt of the particulars, list all the petitions together on 26th August, 2019.
List on 26th August, 2019.
Copy of this order be furnished to the learned Advocate General as also the counsel appearing for the petitioners under the seal and signatures of Bench Secretary. Mr Asif Maqbool, learned Assisting counsel with the learned Advocate General, shall ensure that the copy is received and placed before the learned Advocate General.
CM no. 4534/2019; 3289/2019 and 4873/2019 Mr Jahangir Iqbal Ganai, learned Senior counsel and Mr F. A. Bhat, learned Counsel representing petitioners/ applicants submitted that in order to preserve the lis for the relied prayed for, the court may consider the grant of interim relief and direct the respondents to continue with the arrangement till the matter is decided.
Heard learned counsel for the parties on the interim relief. I am of the considered view that it shall be for the respondents to take a call in the matter as regards the need to continue the academic arrangement of the petitioners.
It is made clear, though, that pendency of the writ petitions shall not form an impediment for the petitioners/ applicants to seek the relief as would be available to them including the extension in service from the competent authority. It is also made clear that in the event the petitioners are declined the relief vis-à-vis their continuation that shall not by itself render the writ petition infructuous. It is also made clear that if the respondents need the academic arrangements to continue they are expected not to substitute the petitioners.
CM no. 4918/2019 in WP (C) no. 1743/2019 The applicants/ petitioners have filed the application with a prayer that the supplementary affidavit be taken on record.
On the set of facts and the grounds taken coupled with the submissions made at Bar by the learned senior counsel for the applicants, the application is allowed and the supplementary affidavit is taken on record, copy whereof shall be furnished to the other side.
(ALI MOHAMMAD MAGREY) JUDGE Srinagar 25.07.2019 Amjad Lone PS AMJAD AHMAD LONE 2019.07.26 18:28 I attest to the accuracy and integrity of this document