Jammu & Kashmir High Court
Dr. Satish Kumar Raina vs State Of J And K Through ... on 23 April, 2004
Equivalent citations: 2004(2)JKJ407
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. An important and interesting question is involved in the present case. The petitioner is a migrant from Kashmir Valley and possesses degree of Bachelor of Unani Medicine (BUMS) from University of Rajasthan, Jaipur and post graduation degree from the University of Colombo, Sri Lanka. He was engaged as a Medical Officer for a period of 89 days vide Govt. Order No. 285-H&ME of 1998 dated 02.04.1998 and continued to function as such even after the expiry of 89 days for which he was initially engaged. Though the petitioner is seeking his own regularization in the service. However, the main issue in the petition relates to the power of the State Government to regularize the adhoc Services of doctors in exercise of its administrative function.
2. Briefly stated after the migration of the members of the minority community from Kashmir Valley, a large number of vacancies fell vacant temporarily, which were earlier manned/occupied by the migrant government employees. Some of such posts in the Medical Department also became available on account of some doctors leaving Valley as a result of eruption of militancy. The State Government appears to have made temporary arrangement for manning these migrants posts by resorting to adhoc/stop-gap appointments. The migrant employees who left the Valley and took shelter in Jammu, Delhi and other parts of the country were also paid leave salary by the Government and their lien was kept intact. Since due to situation in the Valley migrants did not joined back their respective posts, the adhoc arrangements continued for years.
3. A large number of writ petitions came to be filed before the High Court by these adhoc appointees claiming their regularization against the migrant posts held by them as a stop-gap, arrangement. One of such writ petition was SWP No. 503/2000. Keeping in view the nature of the relief and large number of such petitions pending in Srinagar Wing of this court, the matter came to be referred to the Full Bench. The then Advocate General of the State appeared before the Full Bench and made statements before the Court, which was taken on record. The relevant part of the order taking notice of the statement of the Advocate General is quoted as : --
" 2. The learned Advocate General informed the Court that the state Government has decided to allow all the petitioners appointed against migrant vacancies to continue till an appropriate scheme for their regularization is formulated or till the concerned migrant employees return to their duties in Kashmir Valley, whichever happens earlier. To allay the apprehension of the learned counsel for the petitioner, the learned Advocate General also made it clear that in the event of any of the migrant vacancy post becoming a clear vacancy post on any count, or any of such post having already become a clear vacancy post, those petitioners, who are already working on those migrant vacancy posts shall be considered for regularization on such posts.
4. This statement of the Advocate General was accepted by the counsel appearing for the writ petitioners and, accordingly, a consent order was passed by the Full Bench which reads as :
"5. In view of the above, by consent of the learned counsel for the petitioners, all the writ petitions including those listed in the supplementary cause list for the days alongwith the contempt petitions and interim applications accompanying all these writ petitions, are disposed of in terms of the following consent order :
(i) The State Government shall allow all the petitioners appointed against migrant vacancies to continue till an appropriate scheme for their regularization is formulated, or till the concerned migrant employees return to their duties in Kashmir Valley whichever happens earlier.
(ii) In the event of any of the migrant vacancy post becoming a clear vacancy post on any count, or any of such post having already become a clear vacancy post, those petitioners, who are already working on those migrant vacancy posts, shall be considered for regularization on such posts in accordance with law.
(iii) In the event any of the petitioners is required to give up the job due to the return of the migrant to the Valley or for any other reason (except in disciplinary proceedings), the order of his ouster shall not be given effect to for a period of one month to enable the petitioner concerned to avail for such remedy as may be available to him under the law including approaching this Court."
5. Taking lead from the consent order passed by the Full Bench, the State Government appointed Empowerment Committee vide Government Order No. 1304-GAD of 2001 dated 09.11.2001 comprising of Principal Secretary to Govt., Finance Department, Secretary to Government, Education Department, Secretary to Government, Health and Medical Education, Special Secretary to Govt., Planning and Development Department, Additional Secretary to Govt., General Administration Department, Additional Secretary to Government, Health (ISM) Department, Director Codes, to consider the issue of regularisation of adhoc appointments made against the migrant vacancies. Empowerment Committee held its meeting on 11.12.2003 wherein migrant vacancies in Education Department and Health and Medical Education (ISM) were considered. The Committee had earlier taken a decision that the regularization of adhoc appointments against the clear vacancies only be examined. Accordingly, the Committee approved regularisation of seven lecturers in the Education Department and recommended the regularisation of 41 BUMS doctors working against the clear vacant vacancies. It was observed that the regularization order of these doctors be issued after seeking approval of the competent authority. The minutes of the meeting have been placed on record. The Committee earlier in its meeting held on 13.08.2003 decided that all migrant vacancies caused due the retirement or otherwise should be filled up from the migrant adhocees as per the seniority and proper record of appointments. It is under these circumstances that as many as 41 BUMS doctors appointed on adhoc basis from time to time have been recommended for regularisation and are being regularised. This court vide interim order dated 23.12.2003 issued the following interim direction: --
" Mr. Sunil Hali, Advocate.
Issue notice to the respondents returnable within four weeks.CMP No. 2621/2003
Notice in CMP also returnable within the same period.
Subject to objections from other side and till further orders, it is directed that no adhoc arrangement shall be regularized in the Department of Unani Medicines, Health and Medical Education Department, pursuant to the minutes of the meeting of the Empowerment Committee dated 13.08.2003."
6. The matter was finally heard with the consent of the learned counsel for the parties. It has been argued on behalf of the petitioner that regularization of adhoc appointments, particularly, gazetted cadre of service, is contrary to the mandate of Articles 14 and 16 of the Constitution of India and it is accordingly stated that the State Government has no power to regularise the adhoc appointments as the same are in the nature of back door entry. All eligible persons have a right to be considered against the vacancies, which can only be filled up by inviting applications by the Public Service Commission and considering all eligible candidates. Learned Advocate General appearing on behalf of the respondents-State has strenuously argued that the regularisation of these adhoc appointees has been permitted by the Full Bench of this Court and the State Government has initiated process for regularization in view of the Full Bench judgment of this court dated 28.06.2001.
7. I have considered the Full Bench judgment passed by this Court in SWP No. 563/2000 and SWP No. 1309/98.
It may be observed at the outset that the Full Bench of this court has passed order on the basis of consent of the parties before it and particularly the statement of the Advocate General who gave concession on behalf of the State Government. In view of the consent order, the State Government is to allow the writ petitioners appointed against the migrant vacancies till an appropriate scheme for their regularisation is formulated or till the return of migrants to their duties in Kashmir Valley, which ever happens earlier. It is stated at the Bar that the migrants have not returned back which necessitated framing of Scheme and the Cabinet took a decision for regularisation of the adhoc employees, pursuant to the Full Bench decision. The consent order-further says that in the event of any migrant vacancy become clear vacancy, those petitioners who are already working, shall be considered for regularisation on such posts in accordance with the law, and in the event any of the petitioners is required to give up the job due to return of the migrant to the Valley or for any other reasons (except in disciplinary proceedings), the order of his ouster shall not be given affect to for a period of one month to enable the petitioner to avail the remedy available to him under law.
8. Some questions that need attention of this court viz. (a) does the State possess power to regularize the adhocees in Gazetted Service by relaxing rules of recruitment; (b) can State Government order regularisation of adhoc appointees against, (i) the migrant vacancies where migrants ceased to have lien on account of retirement/death; (ii) the migrant vacancies where the migrant continued to have lien but has not returned to Valley to man the posts.
9. It is settled position of law that the State Government cannot relax the rules of recruitment. This issue was considered by the Apex Court in case of J&K Public Service Commission v. Dr. Narinder Mohan and Ors., AIR 1994 SC 1808, wherein it is held as:
"7. Existence of statutory Rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but would only supplement the law. The Governor exercising the power under proviso to Section 125 (Article 309 of the Constitution of India) made the rules which do not expressly give the power to the State Government to make ad hoc appointments. No such rule has been brought to our notice. No express power was conferred and in fact cannot be conferred to relax the rules of recruitment. Having made the rules the executive cannot fall back upon its general power under Article 162 to regularize the ad hoc appointments under the Rules. Rule 9(3) empowers only to relax the qualification of age in particular exigencies which cannot be called in aid to relax the rules of recruitment. To tide over unforeseen exigencies, power to make ad hoc appointments may be visualized as envisaged by Explanation-b to Rule 4 but it expressly states that by virtue of such appointment, the ad hoc appointee does not become member of the service. The rule prescribes direct recruitment/promotion by selection as the mode of recruitment which would be done only by PSC or promotion committee duly constituted and by no other body. Therefore, ad hoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make ad hoc appointment due to emergent exigencies does not clothe the executive government with power to relax the recruitment or to regularize such appointment nor to claim such appointments to be regular or in accordance with rules. Back door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot coexist in the same shealth. The former is in negation of fair play. The latter are the products of order and regularity. Every eligible person not necessarily be fit to be appointed to a post or office under the State, selection according to rules by a properly constituted commission and fitment for appointment assures fairness in selection and inhibits arbitrariness in appointments. In view of the Explanation-b to Rule 4, the ad hoc appointments to any post in any of the three wings of the services under the rules are therefore de hors the rules. Appointments of the respondents 1 to 6 cannot be held to be in accordance with the Rules."
10. In the aforesaid case also some doctors were appointed on adhoc basis and thereafter regularised without advertising the posts and inviting applications from all the eligible candidates, a large number of writ petitions came to be considered by this Court and Division Bench of this Court directed to place the service record of these adhocees before the Public Service Commission, who shall consider their record and make selection. The process of selection was ordered to remain confined to adhocees only. The court on consideration further observed :"
"10. The next question is whether the direction given by the High Court to regularize 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, regularization 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."
11. In another case from this court where the question of regularization of promotees against the quota of direct recruits came to be considered. The Apex Court in case of Suraj Parkash Gupta v. State of J&K and Ors., AIR 2000 SC 2386 has held as under: --
" 27. The decisions of this Court have recently been requiring strict conformity with the recruitment rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment. In Keshav Chandra Joshi v. Union of India, 1992 Suppl (1) SCC 272: (AIR 1991 SC 284 :1991 Lab IC 216) the Rule permitted relaxation of conditions of service and it was held by the three judge Bench that the rule did not permit relaxation of recruitment rules. The words 'may consult the PSC' were, it was observed, to be read as 'shall consult PSC' and the rule was treated mandatory. In Syed Khalid Rizvi v. Union of India, 1993 Suppl. (3) SCC 575 at 603, decided by a three Judge Bench a similar strict principle was laid down. The relevant Rule-Rule 3 of the Residuary Rules (see p.603) (para 33) in that case did permit relaxation of 'rules'. Even so, this court refused to imply relaxation of recruitment rule and observed :
"the condition precedent, therefore, is that there should be appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused,...It is already held that conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed."
"30. The result of the discussion, therefore, is that the wholesale regularization by order dated 2-1-1988 (for the Electrical Wing) by way of implied relaxation of the recruitment rule to the gazetted category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, power under Rule 5 of the J&K CCA Rules, 1956 to relax rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment.
12. In addition to the above, the Apex Court issued certain general directions to the State Government in para 82 thereof which are as : --
" 82. Apart from the above specific directions, we think this is an occasion to issue certain general directions to the State of Jammu & Kashmir. As pointed out earlier, the State of Jammu & Kashmir has been flouting basic rules of recruitment by granting relaxation of the rules of direct recruitment as also the rules requiring consultation with PSC/DPC for promotions/recruitment by transfer. In order to ensure that this is not done in future, the following directions shall also issue.
(c) The State of Jammu & Kashmir will ensure that no relaxation of basic recruitment rules is made for direct recruitment through P.S.C., or for purposes of regular promotions/recruitment by transfer. The recommendations of the Committee referred to above may be considered by Government and implemented in accordance with the rules and in accordance with law without unreasonable delay."
13. In view of the law laid by the Apex Court and specific directions to the State Government in case of Suraj Parkash Gupta v. State of J&K and Ors., I am of the considered opinion that the State Government has no power to relax the rules of recruitment and consequently make regularization against the vacancies occupied by the adhoccees. If the vacancies have become clear on account of retirement/death of migrant, same were required to be filled up by inviting applications and providing opportunity to all the eligible candidates, if the vacancies have not become clear and migrants who had earlier occupied the posts are still in service and have not returned to Kashmir Valley to occupy these posts, they continued to have lien as they are drawing leave salary, in such situation also these vacancies can not be permitted to be filled up again by relaxation which means substantive appointment against the vacancies where an employee has already lien.
Lien of Government Servants is governed and regulated by C.S.R. Relevant provisions of C.S.R. are noted hereunder : --
" 37-A. Unless in any case it be otherwise provided in these Regulations, A Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. Government servant on his substantive appointment to a tenure post may acquire a lien thereon without ceasing his lien on any other permanent post.
37-B. Unless his lien is suspended under Article 37C or transferred under Article 37H a Government servant holding substantively a permanent post retains a lien on that post: --
(a) while performing the duties of that post;
(b) while on foreign service, or holding a temporary post, or officiating in another post;
(c) during joining time on transfer to another post; unless he is transferred substantively to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post;
(d) while on leave other than refused leave under Article 166A;
(e) while under suspension.
37-G. A Government servant's lien on a post may in no circumstance be terminated even with his consent, if the result will be to leave him without a lien, or a suspended lien upon a permanent post."
14. Under Article 37-A, a government servant appointed to a post acquires a lien thereon which he is entitled to retain even under the circumstances indicated in Article 37-B. Termination of lien of Govt. Servant is only under situations indicated in Article 37-G. Therefore, vacancies where the migrants continue to be in service have not become lien free vacancies and cannot be filled up by regularisation of adhocees who are temporarily manning these vacancies. In other cases where clear vacancies have become available, the same have to be thrown open to market for recruitment.
15. The learned Advocate General has vehemently argued that the State Government has acted on the basis of the judgment of the Full Bench of this Court and reference is made to Government Order No. 1304-GAD of 2001 dated 09.11.2001 (Annexure. R-2) wherein the State Government took a policy decision to regularise all the adhoc appointments against migrant vacancies relying upon Full Bench judgment dated 28th July, 2001 passed in SWP No. 1309/98 and others. It is true that Full Bench of this court has passed the consent order referred to hereinabove. I am of the opinion that the Full Bench of this court only recorded consent (statements) of the parties and no directions were issued of its own. I have no doubt in my mind that any judgment or order passed by a Division Bench or a Full Bench of this court has binding force upon me under Rule 34 of J&K High Court Rules, 1999. In the present case, order does not seem to be a judgment of the court. Yet keeping in view judicial propriety and the highest traditions of this court and keeping in view the law laid down by the Apex Court in case of J&K PSC v. Dr. Narinder. Mohan and Suraj Parkash Gupta v. State and Ors. referred to above and other catena of judgments noticed by the Apex Court in Suraj Parkash Gupta' case, I deem it my obligation to refer this matter to the Larger Bench of this court. This is also in view of the observations made by the Apex Court in State of U.P. and Anr. v. C.L. Aggarwal and Anr., AIR 1997 SC 2431 wherein Apex Court observed that where there is conflict between the Full Bench decision of the court and that of the Apex Court, it is advisable to refer the matter to the Full Bench for denovo examination. What was observed by the Apex Court in this case is noticed in para 19 which reproduced as under : --
"19. We are dismayed that the Division Bench hearing the said writ petition should have proposed to examine the issue "notwithstanding the aforesaid pronouncement of the Full Bench judgment." If the judgments in the cases of Supreme Court Employees' Welfare Association (AIR 1990 SC 334) and M.C. Puttaswamy (AIR 1991 SC 295) were cited and the respondents to the said writ petition submitted that the Full Bench judgment was erroneous by reason thereof, the proper course for the Division Bench to follow, if it found any merit in the submission, was to refer the said writ petition to a Full Bench, Judicial discipline requires that a Division Bench should not examine de novo an issue that is concluded by the decision of a Full Bench of that High Court."
16. Accordingly, I refer the matter to the Larger Bench to consider the following important questions of law and public importance involved in the present case: --
(i) whether the order passed by the Full Bench on the consent of the parties has binding nature on all other benches of the court in terms of Rule 34(1) of the J&K High Court Rules, 1999;
(ii) whether the State has power to relax the rules of recruitment under the given circumstances; and
(iii) whether the migrant vacancies can be filled up by the regularization of adhoc appointees where :
(i) the migrant has retired /died and a clear vacancy has become available; and
(ii) the migrant continued to be in service and has lien on the post.
17. Let the file be placed before Hon'ble the Chief Justice for constitution of appropriate Bench.
CMP No. 2621/2003The interim direction dated 23.12.2003 shall remain in force till the disposal of the petition. CMP disposed of.