Jammu & Kashmir High Court
Aijaz Hussain Zargar vs State Of J&K And Ors. on 22 July, 2002
Equivalent citations: 2003(1)JKJ537
JUDGMENT
1. Petitioner being aggrieved by an order dated 28-05-2002 made by learned Single Judge in SWP No. 130-A/1998, whereby writ petition has been dismissed, has filed this appeal.
2. The appellant who was petitioner before the learned single judge, was appointed as Junior Assistant on adhoc basis for a period of 89 days or till the post is filled up by the competent authority, whichever is earlier, at Rs. 950/-plus allowances as admissible under rules against the available vacancy of Junior Assistant in the chief Medical Officer's office Anantnag. The order is signed by chief Medical Officer (CMO) on 18-11-1997. Before completion of 89 days, the petitioner filed the writ petition before the court inter-alia stating that he was appointed/engaged as Junior Assistant on adhoc basis for a period of 89 days or till the post is filled up by the competent authority against available vacancy in the office of the respondent No. 3. The appellant in his petition stated that 'respondent' are now trying to discontinue the petitioner from the present arrangement and as such he has every apprehension that he would be thrown out of service at any time and prayed for direction to continue the appellant till the post is filled in .
3. Even in the memo of the appeal, similar contention is raised. It is required to be noted that neither in the memo of appeal nor in the writ petition, it is stated clearly that, that appointment was not to continue even before 89th day when regular appointment is made, or the appointment was on adhoc basis for 89 days only and would come to end by efflux of time. It is also not stated that in either events of selection before 89th day or on expiry of 89th day, whichever event occurs first, the petitioner's service shall dis-continue. However, it is clear from the record that the petitioner/ appellant herein continued in service on the strength of the court orders.
4. At the time of final hearing of the petition, it was pointed out to the writ court that the competent authority was to fill up the post and not the CMO. The contention that the petitioner was to continue till the post filled as per rules has been rejected by the court. Learned Judge has pointed out that while issuing notice to the respondents, petitioner was allowed to continue till the next date of hearing and thereafter by subsequent orders passed by the court, the petitioner continued in service. Thus the petitioner continued in service not under the orders of the Chief Medical Officer, but on the strength of the court orders.
5. Respondents had filed their objections to the writ petition and it has been specifically pleaded that the CMO of his own was not competent to engage the petitioner as Junior Assistant and therefore, his appointment was dehors the Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and appeal) Rules 1956. It was submitted that in view of this rule the petitioner/appellant herein was not entitled to the relief which is sought in the writ petition.
6. As the writ court, hearing the petition was of the opinion that since the post was not filled by the competent authority within 89 days, the engagement of the petitioner was to come to an end on the expiry of 89 days. However, the petitioner before the expiry of 89 days filed the petition and on the strength of interim orders continued in service.
7. Learned Advocate submitted that the Apex court in several cases has pointed out that a person appointed on adhoc basis is required to be regularized. It would not be out of context at this stage to refer to Rule 14 of the Jammu and Kashmir Civil service (Classification, Control and Appeal) Rules, 1956. Rule 14(1) reads as under :-
"14(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 posit borne on the cadre of the service, class or category and the making of an appointment to such vacancy in accordance with these rules would involve undue delay, excessive exenditure 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."
8. Thus even if it be assumed for the sake of arguments that CMO in view of the aid of the rule made an order considering the emergency and vacancy was not filled in, even then the petitioner had no right what so ever to continue after 89 days. But he continued on the strength of interim orders passed by the court and the continuation on the strength of interim orders of the court does not give him any right.
9. So far as adhoc basis appointments are concerned, it is known in the service jurisprudence that it is only for stop gap arrangement. It is made due to exigency of a particular situation without considering the merits of others who were likely to get benefit, they may not be considered in view of the situation. By back door entry into govt. service by adhoc appointment, if a person is appointed for 89 days but continued in service in view of the order made by the court, can it be said that he has a legal right to continue? In the opinion of the court, certainly not because if the services of an adhoc appointee were needed by the authority concerned beyond 89 days, then the services of such employee could have been extended by an order of the authority concerned. In the opinion of the court, though before completion of 89 days, writ petition was preferred and orders of the continuation was obtained, the same will not clothe the petitioner with any right of continuation whatso ever. A person appointed in this manner is continued that would be in breach of rights of other eligible candidates.
10. Our attention was drawn to the supreme court decision in case of J&K Public Service Commission v. Dr. Narinder Mohan and Ors, AIR 1994 Sc 1808. In that case there was no dispute that the appellants were recruited on adhoc basis and have been continuing as such. They put in more than 13 years of service and therefore, they contended that they were entitled to regularization of service and therefore, they contended that they were entitled to regularization of service and therefore, approached the high Court for a direction to the authorities concerned to regularize their services. The Apex court considering the case decided by the High Court in case of Dr. Narinder Mohan and Ors. v. J&K Public Service Commission, directed the state govt to inform the vacancies to the Public Service Commission within a period of two months. It was open to the appellants to apply for their regular recruitment and it was left to the public Service Commission to consider the respective claims of the candidates who shall apply for and to make necessary selection according to rules. It is thus clear that though the Doctors were rendering Service for a period of 13 years continuously without any interruption and were permitted to continue by the authorities, even then court directed the state govt. as indicated above. The court pointed out that they should be permitted to continue on adhoc basis till regularly selected candidates are appointed and age bar, if any, should be relaxed to enable the appellants to apply.
11. In the instant case, as indicated earlier, petitioner was continued, not by the appointing authority but under the orders of the court he was continued and, therefore, this benefit is not available to the petitioner.
12. Learned Counsel Mr. Shafiq further submitted that learned single Judge of this court in case Mohammad Yousaf Pukhta v. State of J&K reported in SLJ 1989 J&K 62 has held that it is immaterial if he was working against the post w.e.f. 04-08-1986 under the orders of the court. As he was working in his own right though as adhoc appointee till 04-08-1986, when his earlier writ petition came to be decided, his continuance on the post would entitle him to attained eligibility to be appointed permanently as Junior Assistant because he has attained quasi-permanent status as Junior Assistant in the Department for having served for more than three years in the department. After three years, the incumbent cannot be treated as an adhoc appointee. The aforesaid view is not the correct view.
13. In view of the Judgement of the Apex Court which we have referred herein above, it is clear that what is held by learned Single Judge is contrary to the principles laid down by the Apex Court and is not holding good law. In view of the Apex Court Judgement, it is obvious that the Judgement in case of Mohd. Yosuf Pukhta (supra) cannot be relied upon if the person has worked under the orders of the court. As a matter of facts, the date on which petition is filed is the material and on the date of filling of the petition, he would have worked for longer period, than matter would have been quite different. In the instant case, the petitioner did not even worked for 89 days and before 89 days under the orders of the court, continued and, therefore, benefit cannot be extended to him.
14. The Apex Court in Dr. Narinder Mohan's case (supra) has pointed out that every eligible candidate is entitled to be considered. Recruitment by open advertisement which is one of the well accepted mode of recruitment should be accepted by inviting applications for recruitment to fill vacancies is consistent with the right to apply. Eligible persons must be considered and their right to be considered if eligible to the office or the post is a right guaranteed under Article 14 and 16 of the constitution of India. The Apex Court also pointed out as under :-
".....A little leeway to make adhoc appointment due to emergent exigencies does not clothe the executive govt. with power to relax the recruitment or to regularize such appointment nor to claim the such appointments to be regular or in accordance with rules. Back door adhoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot co-exit in the same sheath. The former is in negation of fair play. The latter are the products of order and regularity.
15. With regard to regulariza-
tion of adhoc appointees in peculiar facts of the case as per directions of the Supreme Court under Article 142 cannot be treated as ratio as pointed out by the Apex Court in the aforesaid case. The court pointed out as under :-
"Article 142 power is confided to Supreme Court gives direction under Article 142 for regularization of the service of an adhoc appointee in the peculiar facts of that case, the same could not be treated as ratio for placing reliance upon. It could not be said that the Supreme Court as a general rule laid down that in every category of adhoc appointment, if the adhoc appointee continued for a long period, the rules of recruitment should be relaxed and the appointment by regularization be made.
16. It is required to be noted that by adhoc appointment on account of continuance in service, it would adversely affect the other eligible candidates and particularly candidates belonging to the reserved categories. As pointed out by the Apex Court in case State of Haryana v. Piara Singh, 1992(4) SCC 118 that the normal rules regular recruitment through prescribed agency, but exigencies of administration may some times call for an adhoc or temporary appointment to be made. In such a situation, effort should always be made to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. The temporary employee would also get liberty to compete along with others for regular selection, but if he is not selected, he must give away to the regularly selected candidate. The Apex Court also pointed out that the appointment of the regularly appointed candidate cannot be withheld or kept in abeyance for the sake of such temporary or adhoc employee. The court pointed out that therefore, this court did not appear to have intended to lay down a general rule that in every category of adhoc appointment, if the adhoc appointee continued for longer period, rules of recruitment should be relaxed and the appointment be regularized.
17. The Apex Court in case Director Institute of Management Development v. Pushpa Srivastava reported in AIR 1992 Sc 2070 pointed out that where appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment come to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on adhoc basis for more than a year. He cannot claim regularization in service on the basis that he was appointed on adhoc basis for more than a year.
18. In the case on hand, as indicated earlier, before expiry of period of 89 days, the court was moved and on the basis of the court orders, appellant continued. That does not gives him any right, as pointed out by Apex Court. In view of this, the judgement rendered by learned single Judge in case of Mohd. Yousf Pukhta (supra) cannot be held to be a good law and cannot be relied upon if the person has worked under the orders of the court.
19. As indicated herein above, the citizen of this country who are eligible to apply for the post are entitled to offer services to the state Govt. or the union of India. It is the bounden duty of the authority concerned to select candidates after following due procedure established by law. There are many unemployed youths in the state who are qualified and whose names are enlisted in the Employment Exchange and are waiting for a call. However, by this back-door entry if persons are appointed, then the more meritorious and qualified persons who are waiting in the que to compete for their selection and appointment would not get chance for offering their services. After all competent persons are required to be selected unless otherwise law provides. The court is of the opin-
ion that reading Rule 14 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, it is clear that the petitioner could not have been continued after 89th day unless appointed by an order made by the competent authority.
20. For the reason stated above, the appeal is dismissed as being devoid of any merit.