Jammu & Kashmir High Court
Mir Khalid Yaseen vs State And Ors. on 6 July, 2004
Equivalent citations: 2004(3)JKJ29
Author: Nisar Ahmad Kakru
Bench: Nisar Ahmad Kakru
JUDGMENT Nisar Ahmad Kakru, J.
1. Petitioner came to be engaged as Typist for a period of 89 days by order dated 28.5.1999 which may be noticed.
In pursuance of the orders given by the Hon'ble Minister for Science and Technology, J&K Govt. vide his No. PS/M/Inf/188/99 dated 9.4.1999, Sh. Khalid Yaseen Mir S/o Mohd. Yaseen Mir R/o Khayam Chowk, Srinagar, who is type-knowing with educational qualification of BSc 2nd year is hereby temporarily engaged as a typist in his office in the pay scale of Rs. 3050-4590 for a period of 89 days w.e.f. 28-5-1999 in the interest of smooth functioning of this office. The pay of the official shall be drawn against the post of Sr. Stenographer which has fallen vacant in this office following the transfer of Sh. Jagdish Chander PA to Director."
2. The term of 89 stipulated by the order was extended from time to time. By medium of this writ petition, indulgence of the court is sought to allow him to function till the post of Typist is filled up on regular and substantive basis through a process of selection. How far petitioner can succeed in his claim needs to be appreciated in the face of the basic order of engagement. The order pressed into service reproduced hereinabove reveals that there was absolutely no post of typist available, that is what made the issuing authority to allow the salary to the petitioner against the post of a Senior Stenographer. It goes without saying that appointment against a post, be it substantive or ad hoc, presupposes availability of a vacancy. Question of filling up of the post of Typist would only arise if post of typist is available but fact of the matter is that post is not available, therefore, no question arises to fill it up. Obviously, the relief claimed through this writ petition cannot be conceived of.
3. Now a word about the fate of second petition SWP 256/02 questioning order No. 195-GAD of 2002 dated 30.1.2002 which reads:
"Shri G.L. Bhat, Junior Stenographer of the office of Advocate General is hereby transferred and posted in JAKEDA. He shall work in his own pay and grade and retain lien in his parent Department viz. office of Advocate General. By order of the Government of Jammu & Kashmir."
4. The post of a Senior Stenographer is not a post of Typist. Rules prescribe all together a different mode of appointment and criteria of eligibility. Examining the petitioner's claim on the touchstone of rules he is absolutely in-eligible for regularization against the post of a Senior Stenographer. The Ld. appearing counsel has placed reliance on 1992 SCC Suppl. Vol.2 page 567 para 28 and AIR 1992 SC page 677 para 6 ignoring the settled legal position that judicial precedents can be applied provided facts are quite similar which is lacking. There being no similarity of facts, the judicial decisions are not attracted. It also calls for a mention that the Ld. counsel was pointedly asked to refer to the rules/law by dint of which it can be said that a vested right is created in the petitioner for appointment on the strength of an order providing continuation for a just specific spell that too in absence of a post but no rule or statute was shown to substantiate the contention. Suffice it to say, that in absence of post the petitioner cannot aspire to continue. What to talk of regularization. Need less to say that advancing claim for regularization tantamounts to gross exaggeration on the part of the petitioner.
5. How has the apex court dealt with a case involving similar situation, it is advantageous to refer to a decision recorded in Himachal Road Transport Corporation v. Dinesh Kumar, (AIR 1996 SC 2226) para(8):
"In the absence of a vacancy it is not open to the corporation to appoint a person to any post. It will be a gross abuse of the powers of a public authority to appoint persons when vacancies are not available. If persons are so appointed and paid salaries, it will be a mere misuse of public funds, which is totally unauthorized."
6. The mandate of the judgment (supra) makes it very clear that appointment in absence of a post amounts to misuse of funds consequently abuse of power. Moreso, filling up a post by transfer of an in-service candidates is neither unknown to the service jurisprudence nor violative of rules governing the field.
7. In the result the writ petitions fail. Dismissed alongwith CMPS. Interim directions are vacated. However no order as to costs.