Jammu & Kashmir High Court
J&K Board Of School Education Through vs Nirmala Devi And Others on 8 June, 2023
Author: N. Kotiswar Singh
Bench: Chief Justice, Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
Reserved on: 14.03.2023
Pronounced on: 08.06.2023
LPA No.1/2019
J&K Board of School Education through
its Secretary. ...Appellant.
Through: Ms. Aruna Thakur, Advocate.
Vs.
Nirmala Devi and others. ....Respondents
Through: Mr. Abhinav Sharma, Sr. Advocate, with Ms. Supriya Gandotra, Advocate.
LPA No.2/2019 MCC No.1/2019 J&K Board of School Education through its Secretary. ...Appellant.
Through: Ms. Aruna Thakur, Advocate.
Vs. Pawan Singh and others. ....Respondents Through: Mr. Abhinav Sharma, Sr. Advocate, with Ms. Supriya Gandotra, Advocate.
LPA No.79/2019 Parvinder Kumar Lehria ...Appellant.
Through: Mr. Jasbir Singh Jasrotia, Advocate.
Vs. J&K State Board of School Education & Others ....Respondents Through: Ms. Aruna Thakur, Advocate, for the Board.
Mr. Abhinav Sharma, Sr. Advocate, with Ms. Supriya Gandotra, Advocate, for private respondents. SWP No.2631/2017
Parvinder Kumar Lehria ...Appellant.
Through: Mr. Jasbir Singh Jasrotia, Advocate.
Vs.
J&K State Board of School Education & another. ....Respondents
Through: Ms. Aruna Thakur, Advocate, for the Board.
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CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
(N. Kotiswar Singh, CJ)
01. The three Letters Patent Appeals, LPA Nos. 1 of 2019, 2 of 2019 and 79 of 2019 which have been preferred against the common judgment and order dated 24.10.2018 passed in the writ petitions, being SWP Nos. 367/2013 and 157/2016, are tagged together and heard and disposed by this common judgment.
LPA Nos. 1 of 2019 and 2 of 2019 have been preferred by the Jammu and Kashmir Board of School Education whereas, the other LPA No. 79 of 2019 has been preferred by one Parvinder Kumar Lehria who initially challenged successfully the appointment of the present private respondents as Desk Job Workers on consolidated basis in the Jammu and Kashmir Board of Secondary Education.
02. Parvinder Kumar Lehria, appellant in LPA No.79/2019, has also preferred a writ petition, being SWP No.2631/2017 which has been tagged with these LPAs, in view of the fact that relief claimed in the writ petition is co-related with the issues raised and relief claimed in the three LPAs. In this writ petition, the petitioner-Parvinder Kumar Lehria, is seeking a direction upon the respondents to finalise the select list for the post of Desk Job Workers in J&K State Board of School Education which were advertised vide Employment notice no.F(Admn- B)CU/13 which is the subject matter of aforesaid three LPAs‟, and to appoint him as Desk Job Worker claiming to be the most eligible and meritorious candidate and restraining the respondents from engaging any other person against the said posts.
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03. The aforesaid two writ petitions SWP Nos. 367/2013 and 157/2016 out of which the present three Letters Patent Appeals have arisen, were allowed by the Ld. Single Judge vide impugned common judgment and order dated 24.10.2018 holding that the writ petitioners, the present private respondent Nos. 3 to 8 herein, shall be deemed to have been engaged afresh on consolidated basis in their respective jobs with effect from 08.11.2011. Further, the Ld. Single Judge also held that the writ petitioners were entitled to regularization of their services in terms of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 on completion of 7 years services to be reckoned with effect from 8.11.2011 with all consequential benefits.
04. The grievance of the appellant-Parvinder Kumar Lehria in LPA No.79 of 2019 is not confined only to the aforesaid common judgment dated 24.10.2018, and it can be traced back to the year 2004 when he successfully challenged the engagement of these private respondents as Desk Job workers by the Jammu and Kashmir State Board of School Education (for short the „Board') on consolidated pay for a period of 60 days which was extendable from time to time depending on the need and satisfactory performance, by filing the writ petition, SWP No. 1520 of 2004, primarily on the ground that their appointments were arbitrary, improper and were hastily made by the then Chairman of the Board just six days before his retirement, thus vitiated by favouritism and undue influence.
05. The learned Single Judge in the aforesaid writ petition, SWP No. 1520 of 2004 after hearing all the parties and considering the materials on record made available before the Court, took a very dismal view of the manner in which the appointments were made, casting serious doubts on the fairness and transparency of the recruitment process and, accordingly, held that their appointments were -4- unjustified and unwarranted and consequently, directed discontinuance of their engagement within a period of one month and to hold a fresh selection for engagement of persons for the Desk Job workers by ensuring fair and transparency in the selection on the basis of merit and suitability in accordance with the Rules, Regulations or Instructions governing such engagements.
06. In order to properly appreciate the serious concern and opprobrium by the Ld. Single Judge in SWP No. 1520 of 2004 regarding the irregularities and lapses and lack of transparency in the recruitment process by which the private respondents came to be engaged, we are of the view that it would be more appropriate if the observations and the conclusions arrived at by the Ld. Single Judge in the aforesaid writ petition are reproduced in the words of the Ld. Single Judge.
The Ld. Single Judge noted the lack of any criteria to assess the merit of the candidates in the following words.
" I have heard learned counsel for the parties and gone through the selection record of the Board of School Education which was made available at the time of hearing of this petition.
Perusal of the selection record of the Board of School Education indicates that interview for engagement of persons for Desk and Menial Jobs had been conducted by a Committee constituted of M/s. H. K. Gupta, Joint Secretary Administration, I. K. Kotwal, Accounts Officer and Chand Rani, Joint Secretary Administration, on26th/28th of February, 2004 when out of 103 candidates applying for the Desk Job and 300 candidates applying for the Menial Jobs, only87 had appeared for the Desk Job and 230 for the Menial Jobs. The selection records contain a copy of order No. 483-B of 2004 dated 23rdof June, 2004, a note sheet shown to have been signed on 10th of June,2004 and an unsigned list of candidates who had applied for the Desk/Menial Jobs in the Board of School Education with some notings on this list of 24th of February, 2004.
There is nothing in the records to indicate as to how the Committee had assessed the merit of the candidates who had appeared before the Committee on 26th and 28th of February, 2004. The Board of School Education does not appear to have prepared -5- any criteria for selection of candidates for the Desk and Menial Jobs. It is not discernable from the records as to how the selection Committee would recollect the individual rating of the candidates who had appeared in the interview on 26th and 28th of February, 2004 on 10th ofJune, 2004 i.e. after a period of more than three months when they had prepared a note for its onward transmission to the retiring Chairman of the Board of School Education."
07. The learned Single Judge also observed that there were excessive appointments made from the Jammu District by making all the appointments from Jammu District except only one from Poonch District, without indicating how these candidates were better in merit from other candidates, thus showing lack of fairness and transparency, as evident from the following observation.
"The records of the Board of School Education depict a dismal picture indicating an unfair approach of the Board and its selection committee in playing with the aspirations of those who had competed for the Desk Job and Menial Jobs pursuant to issuance of Notification dated 17.2.2004. The records of the Board of School Education further demonstrate that the Board had exceeded the quota of posts which were required to be filled up from the candidates belonging to Jammu District. Only one candidate Ms. Shamma Bhat, respondentNo. 10, a resident of Poonch had been selected whereas the candidates who had appeared from other Districts had been ignored consideration for selection. I am thus constrained to hold that the selection of private respondent Nos. 4 to 10 was unjustified for there is no records to indicate their having been adjudged better in merit to the others who had competed in the interview. Approval accorded by respondent No. 3, the then Chairman of the Board of School Education, who was at the verge of retirement too demonstrates that the selection had been unfair.
Unfairness in any form whatsoever breads discontent, spreading outrageous and, at times, rebellious ripples thereby polluting individual minds and ultimately affecting the society adversely. Administrative Heads and Selection Authorities owe a duty to the public to act fairly. Their actions are thus required to be transparent, fair and objective. Decisions taken by the authorities at the verge of their retirement, are seen with suspicion by the public. The authorities are, therefore, required to act in such a manner that the confidence of public is not shaken in the Institutions which have to decide about the recruitment of millions of unemployed youth in the Country.
08. The Ld. Single Judge also noted that though the engagements were meant to be a temporary one for a period of 60 days, the private respondents were -6- continuing in service for about 3 (three) years, which the writ Court found unjustified and unwarranted, as observed below.
"Yet another thing which come up for discussion at the time of hearing of this petition was that the respondent- Board of School of Education had been continuing the engagements meant only for a transitory period of 60 days and it was admitted by the learned counsel for the parties that the engagement of the private respondents was still continuing.
This appears to be a device employed by the Board of School Education to continue casual/temporary, engagements thereby sacrificing the Rules, Guidelines and Instructions governing engagement of permanent, temporary or casual employees. Casual, adhoc or temporary engagements cannot be a substitute for regular employment de hors the Rules in force governing such recruitment and appointments. Casual, ad hoc or temporary engagements are permissible only for a short period. These engagements, cannot be continued beyond the prescribed period lest these engagements may deprive all those who may be entitled to seek permanent employment to these positions in accordance with the Rules. Engagement of private respondents beyond a period of 60 days too is this unjustified. Appointment order of the private respondents incorporating a clause that their engagements would be extendable on the basis of their satisfactory performance, was contrary to what was contained in the Notification of the Board of School Education. This clause in the impugned Notification is, therefore, un-warranted.
09. Accordingly, the Ld. Single Judge issued the following directions for disengaging the private respondents and for initiating a fresh recruitment process.
"For all what has been said above, while holding the selection of private respondents for their engagements for Desk Job and their appointments as such, extendable on the basis of their satisfactory performance of duties, to be unjustified and un- warranted. I, would, direct the Jammu and Kashmir State Board of School Education to discontinue the engagement of private respondent Nos. 4 to 10 within a period of one month and to hold fresh selection for engagement of persons for the Desk Job during this period ensuring fair and transparent selection on the basis of merit and suitability in accordance with the Rules, Regulations or Instructions governing such engagements. Petitioner shall also be entitled to consideration in the fresh selection for such engagement and if found fit and suitable, the Competent authority shall consider relaxing his age if he was found to be overaged at the time of selection and appointment.
The writ petition is disposed of accordingly."-7-
10. Naturally, being aggrieved by the aforesaid decision of the Writ Court in the judgment and order dated 10.04.2007 in the aforesaid SWP No. 1520/2004 disengaging the private respondents from service, they preferred two Letters Patent Appeals being LPA No. 61 of 2007 and LPA No. 64 of 2007 which were clubbed and heard together and disposed of vide a common judgment dated 11.10.2010. The Division Bench dismissed the aforesaid appeals in view of the seriousness of irregularities and lack of transparency in the recruitment process.
11. The Division Bench in the aforesaid decision dated 11.10.2010 observed that in a selection process the Administrative Authorities are duty bound to demonstrate administrative fair play, transparency, fairness, and that objectivity must reflect in every action in the selection process so that the confidence of the pubic in those Institutions is not eroded. Due to absence of fair and transparent actions in the selection to the posts of Desk Job, the Division Bench unhesitatingly opined that there was no cogent ground to disturb the impugned judgment, thus upheld the decision of the Ld. Single Judge in the aforesaid writ petition, SWP No. 1520 of 2004.
12. The Division Bench was also of the view that the selection was not transparent and fair, but slightly modified the directions issued by the Ld. Single Judge by extending the time frame for having the fresh appointments by another three months and granted interim relief to the said appellants present private respondents by directing that till such fresh selection is made, the private respondents shall not be disengaged. This continuance in engagement can not by any means considered to be giving a stamp of approval to their initial appointment, which were declared illegal, but only as a stop gap arrangement so that there is no void in the service which were required by the Board. Thus, no -8- benefit or advantage can be said to be given to them by virtue of this interim arrangement inasmuch as the illegality attached to their initial appointment does not get wiped out by the interim protection granted to them.
13. Thus, from the above, it is quite evident that the process by which the present private respondents were engaged as Desk Job workers on consolidated basis in 2004, was found to be not fair, arbitrary and without any transparency because of which their engagements were directed to be discontinued and that the authorities were required to initiate a fresh recruitment process for engagement of the Desk Job Workers on consolidate basis. Unfortunately, inspite of such directions issued by the learned Single Judge, which were reiterated by the Division Bench in the aforesaid two appeals, the Board for reasons best known to it, did not initiate any process for fresh recruitment. However, subsequently, only in the year 2013, after about 3 years of the dismissal of the letters patent appeals in 2010 and after filing a contempt petition for implementation of the order of the writ court (Contempt (SWP) No. 65 of 2011), a fresh advertisement was issued on 09.02.2013 for appointment/ engagement as Desk Job workers on consolidated basis in which ten posts each for Jammu and Kashmir Divisions respectively were notified vide Notification No. F(Adm-B)CU/13 dated 09.02.2013.
14. Pursuant to the said advertisement issued in 2013, the appellant-Parvinder Kumar Lehria again applied for the said advertised posts, for which the written test was belatedly conducted on 10.02.2016 in which the appellant qualified and was called for interview which was held on 28.04.2016.
15. According to the appellant-Parveen Kumar Lehria, while he was expecting the results of the said recruitment process to be declared, in the meantime, the private respondents approached the writ Court by filing two writ petitions being -9- SWP Nos. 367/2013 and 157/2016 challenging the Advertisement issued on 09.02.2013 and notice dated 22.01.2016 calling the candidates for written test in terms of the aforesaid Advertisement dated 09.02.2013.
16. In SWP Nos. 367/2013 the private respondents while challenging the advertisement issued on 09.02.2013 sought regularisation of their services, and in SWP No. 157/2016, the notice issued on 22.01.2016 calling for written was challenged contending, inter alia, that the same is contrary to the mandate of judgment passed in SWP No. 1520/2004 and LPA Nos. 61 and 64 of 2007 and seeking directions to allow them to serve at the respective places of posting till fresh selection is made in terms of the directions issued in the above case.
17. It may be observed that in the said two writ petitions filed by the private respondents, the present appellant was not impleaded as a party, though he was instrumental in challenging the appointments of the private respondents and seeking quashing of their appointments, and for initiating a fresh recruitment process, and the private respondents were very much aware of the locus standi of the appellant-Parvinder Kumar Lehria in the recruitment process.
18. Be that as it may, the Ld. Single Judge after referring to the background of the case and directions issued in the earlier writ petition, SWP No. 1520 of 2004 and the Letters Patent Appeals, LPASW No. 64 of 2007 and LPASW No. 61 of 2007, was of the view that the Board authorities could not have resorted to fresh selection process once again for making temporary engagements for a transitory period of 60 days with the provision for extension subject to satisfactory performance of the incumbents. The Ld. Single Judge was of the view that the Board ought to have conducted the recruitment process for filling up the posts on regular basis and not for temporary period and accordingly, held that the -10- employment notice, consequential actions were contrary to and in violation of the Division Bench judgment dated 11.10.2010 passed in the two Letters Patent Appeals.
19. The Ld. Single Judge was also of the view that as the Board respondent had not complied with the directions of the Division Bench for making recruitment on regular basis and instead proceeded to make recruitment on temporary basis again, the Board had created a situation where the private respondents have been continuing for the last fourteen years and consequently, most of them have become overaged for Government employment and as such, the Court cannot remain a mute spectator to injustice perpetrated and that they deserve to be regularized by observing and concluding in the following words.
"11. Be that as it is, the respondents have not complied with the Division Bench judgment dated 11.10.2010 till date and have rather acted contrary thereto. They have not come up with any advertisement notification to make the regular selection but have resorted to the device of regularizing the services of temporary and consolidated workers. By their sheer neglect and by not complying with the directions issued by the Division Bench to undertake and complete the selection within three months, the respondents have created a situation where the petitioners have been continued in their engagements for the last fourteen years. Resultantly most of them have by now become overaged for Government employment. Had the respondents initiated the fresh process of selection within the time stipulated by the Division Bench, the petitioners would have, at least, got the opportunity to compete and who knows, maybe all or some of them would have been selected. In such situation and in the circumstances narrated above, this Court cannot afford to be mute spectator to the injustice perpetrated on the petitioners and is of considered view that substantial justice in the matter can only be done through innovative interpretative process. It is, thus, held that failure of the respondents to adhere to the time schedule fixed by the Division Bench for conducting selection process has given new dimension to the rights of the petitioners. The continuation of the petitioners beyond the period of three months fixed by the Division Bench for making regular selection, would, therefore, be deemed to be a fresh engagement. That being so, the petitioners are entitled to be considered for regularization of their services in terms of the provisions of the -11- Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 on completion of seven years of their services. 12.
12. For the forgoing reasons, these writ petitions are allowed. The petitioners shall be deemed to have been engaged afresh on consolidated basis with effect from 08.01.2011 i.e. immediately on the expiry of three months from the date of Division Bench judgment dated 11.10.2010 (supra) rendered in LPASW Nos. 64/2007 and 61/2007. The petitioners are also held entitled to regularization of their services in terms of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 on the completion of seven years services to be reckoned with effect from 08.11.2011 with all consequential benefits. Respondent-Board to consider the case of the petitioners as directed hereinabove and pass appropriate orders of their regularization within a period of two months from the date a certified copy of this judgment is made available to the respondents. Respondent-Board shall also take into consideration that persons similarly engaged as Desk Job Workers (some even engaged without any selection process) have been regularized by the Board from time to time".
It is this order which has been challenged before us through these three Letters Patent Appeals.
20. We have heard learned counsel for the parties and perused the materials on record.
21. Ld. Counsel for the appellant Board in LPA Nos. 1 of 2019 and 2 of 2019 submits that the initial engagements of the private respondents were need based and not against clear vacancies and any direction to regularize their services would be contrary to the directions issued in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1.
22. Ld. Counsel has further submitted that the initial engagement of private respondents were found to be illegal as the writ Court held it to be lacking in transparency and directions were issued for taking fresh steps for appointment by issuing public advertisement. It was submitted that the purport of the judgment by the writ Court and the Division Bench in the two Letters Patent Appeals was to -12- conduct a fair and transparent selection process and no direction could have been issued to regularize their services without availability of posts.
23. It has been also contended that the provisions of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010, hereinafter referred to as the "Act of 2010", are not applicable to the Jammu and Kashmir Board of School Education and hence, the consideration of regularization of the private respondents will be beyond the scope of the aforesaid Act of 2010.
24. Ld. Counsel for the appellant, Parveen Kumar Lehria in LPA No. 79 of 2019 also has submitted in similar lines.
The Appellant-Parveen Kumar Lehria in LPA No. 79 of 2019, however, has laid great emphasis on the fact that the engagements of the private respondents were found to be illegal because of lack of transparency and fairness by the Ld. Single Judge which was affirmed by the Division Bench, and a such any direction to regularize their services would be contrary to the earlier decisions.
25. From the above contentions and records, we can draw the following conclusions.
(i) There is a judicial finding in SWP No. 1520 of 2004 that the appointments of private respondents in 2004 were bad in law, due to lack of fairness, transparency in the recruitment process, and accordingly directed their disengagement and proceed for fresh recruitment process, which was affirmed by the Division Bench in the judgment and order passed in the Letters Patent Appeals, LPASW No. 61 of 2007 and LPASW No. 64 of 2007.
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(ii) If the impugned judgment dated 24.10.2018 passed in SWP No. 367 of 2013 and SWP No. 157 of 2016 directing regularization of the services of the private respondents which were found to be bad in law is to be implemented, it would certainly be not in consonance with, rather, would be contrary to the earlier judicial decisions referred to above.
(iii) The impugned judgment dated 24.10.2018 would have the effect of effacing the findings and directions in SWP No. 1520 of 2004 which was affirmed by the Division Bench in LPASW No. 61 of 2007 and LPASW No. 64 of 2007.
(iv) The impugned order, thus, virtually amounts to reviewing and overruling the order passed by the Writ Court in SWP No. 1520 of 2004 which was affirmed by the Division Bench in LPASW No. 61 of 2007 and LPASW No. 64 of 2007, which in our opinion would be impermissible.
(v) Since there is a judicial finding that the initial appointments of the private respondents are bad in law, being arbitrary, unfair without any transparency, the very foundation on which the private respondents has built the edifice of their appointments is intrinsically devoid of legal basis, hence, continuation of their service, much less their regularization becomes untenable in law.
(vi) In our opinion, the defect in the initial appointment of the private respondents hits at the root of their appointment, being based on favouritism, unreasonableness, lack of transparency, which violates the mandate of Article 14 and 16 of the Constitution and such defect is incurable as it has the effect of destroying the very foundation of their appointments. The defect is not a mere irregularity in the recruitment -14- process which could be cured, as in the case of non-production of certain documents or lack of experience, etc. which could be relaxed by the competent authority. But the defects which were found by the writ court in the present case are of such nature that these could not be condoned or relaxed. As such, these incurable defects could not have been overlooked. These defects cannot be also erased by sheer passage of time.
(vii) In our opinion, if such defects were merely alleged, the matter would have been different. But once these are judicially determined, passage of time cannot have the effect of erasing the same and thus cannot be condoned. In our opinion, in the present case, the defect, judicially noticed and determined, in addition to being incurable, will continue to afflict the private respondents. Only a higher judicial forum perhaps could have the competence to nullify such defect, not by a Ld. Single Judge.
(viii) The effect of the impugned order will be that, the private respondents who inspite of being specifically directed to be disengaged because of the foundational defect in their appointment by a judicial order of the Division Bench, would be deemed to be appointed with entitlement of regularization, which in our view would be impermissible.
(ix) It would, in our view, also amount to giving a premium to the beneficiaries of arbitrary, illegal, and unconstitutional acts of the Board merely because of passage of time. While we also understand that the private respondents have rendered a long service, unfortunately, so is the unemployment of the appellant for a long time who had been pursuing his claim to be considered for appointment along with others in equal terms since 2004, and he had successfully challenged the illegal appointments of -15- the private respondents. Yet, all his efforts for equal treatment have remained frustrated for a long period. If the private respondents have become overaged by this time and may not get opportunity to seek appointment at this stage of life as observed by the Ld. Single Judge, so is the case of the appellant Parveen Kumar Lehria in LPA No. 79 of 2019 and petitioner in SWP No.2631/2017 who also has become overaged by now. The only difference between the appellant-Parvinder Kumar Lehria and the private respondents is that Parvinder Kumar Lehria, is a victim of an unfair selection process and the private respondents are the beneficiaries of an unfair selection process. Since the private respondents are beneficiaries of an unfair selection process specifically meant to benefit them, conferring further benefit of continuation in service and regularization appears not to be fair to those who were unjustly left out from the competition.
(x) There is yet another aspect highlighted by the appellant Board, which is that there are no vacant posts available for regular appointment of the private respondents. If that is so, regularization of private respondents under the circumstances would require the creation of posts to accommodate them. We are doubtful, whether the writ court could issue any such direction to the Board to regularize their services without existence of regular vacancies, when they were directed to be disengaged by judicial orders as their appointments were found to be illegal.
(xi) Under certain situations, when parties are victims of circumstances of illegal acts of the authorities, extraordinary powers of the writ court could be invoked to mitigate any hardship caused to such persons. But in the present case, the private respondents were not victims of circumstances -16- or unintended victims of illegal acts of the authority, but the illegal acts of the authority were designed to benefit the private respondents as is clearly evident from the findings of the writ court as well as the appellate court.
Under such circumstances, invoking extraordinary powers of the writ court to grant benefit to those who were beneficiary of illegal acts of the authority intended to grant undue favour to them, by obliterating adverse judicial findings of a higher forum does not appear to be an equitable and legally permissible act on the part of the writ court.
(xii) We have also noted that the provisions of the Act of 2010 is not applicable to the Board as also contended by the appellant Board. It has been mentioned under Section 3(c) of the Act of 2010 that the provisions of the Act are not applicable to non-governmental agencies, or autonomous bodies or public sector undertakings, or government companies or other local authorities which have their own rules and regulations governing their functioning.
Thus, unless the Act of 2010 is adopted by the Board, the provisions of the aforesaid Act of 2010 will not be applicable.
(xiii) Even if the Board is directed to apply the provisions of the aforesaid Act of 2010, the same cannot be applied unless the appointments made are on ad-hoc basis or contractual basis including those appointed on consolidated pay, provided such appointments have been made against clear vacancies as mentioned under Section 3 of the Act.
Section 3 of the Act of 2010 reads follows:
"3. Application of the Act:-- The provisions of this Act shall apply to such posts under the Government as are held by any person having been appointed on ad hoc or contractual basis including those -17- appointed on consolidated pay provided such appointments have been made against the clear vacancies, but shall not apply : -----
(a) persons appointed in terms of government order number 125 dash gad of 2001 dated one 2 2001on contract basis in the personal sections of the ministers or other authorities enjoying the status of a minister;
(b) persons appointed on tenure posts court terminus with the life of the project or scheme of the state or central government is a case may be n rows appointed on academic arrangement for fixed term in any government department;
(c) non-governmental agencies or autonomous bodies or public sector undertakings or corporations or government companies or societies or other local authorities which have their own service rules and regulations governing their functioning;
(d) part time or seasonal employees including those wages are paid from out of the local funds or contingent grants."
(emphasis added) Thus, from the above it is clear that, unless the appointments have been made against clear vacancies, the provisions of the aforesaid Act of 2010 will not be applicable, and it is the specific stand taken by the Board that the private respondents were not appointed against clear vacancies. Hence, if the appointments of the private respondents were not made against clear vacancies, obviously the provisions of the Act of 2010 cannot be made applicable, even if the Board adopts a resolution to follow the Act.
(xiv) We are of the view that when the writ court in SWP No. 1520 of 2004 directed disengagement of the private respondents and initiate a fresh recruitment process, the said direction was issued primarily because the writ court found the recruitment process vitiated due to unfairness and lack of transparency in the recruitment process. However, we have not seen any specific direction by the writ court to the effect that instead of making recruitment for a temporary period of 60 days on consolidated pay, recruitment process be made for regular appointment. In fact, whether the -18- appointments should be made on regular basis or on consolidated basis, does not appear to be an issue in the said writ proceeding.
(xv) The writ Court expressed dissatisfaction and observed that though the appointments were meant for a transitory period of 60 days, the Board had been continuing the engagements, which appears to be a device employed by the Board to continue casual/temporary engagements thereby sacrificing the Rules, Guidelines and Instructions governing engagement of permanent/ temporary or casual employees. It was also observed that casual/ad hoc or temporary engagements cannot be a substitute for regular employment dehors the rules in force governing such recruitment and appointments. It was also observed that casual, ad hoc, or temporary engagements are permissible for a short period, but these engagements cannot be continued beyond the prescribed period, lest these engagements may deprive all those who may be entitled to seek permanent employment to these positions in accordance with the Rules. Therefore, the engagement of the private respondents beyond the period of 60 days was unjustified. It was also observed that appointment order of the private respondents incorporated a clause that their engagements would be extendable on the basis of their satisfactory performance which was contrary to what was contained in the Notification of the Board of School Education, and hence, this clause in the impugned Notification was unwarranted.
Thereafter, the writ Court after directing disengagement of the private respondents directed to hold a fresh selection process for engagement of persons for the Desk Job by ensuring fair and transparent -19- selection on the basis of merit and suitability in accordance with the Rules, Regulations or Instructions governing such engagements.
We do not see, how such observations can be read as a direction for initiating the process for recruitment on regular basis.
We have also not seen any such direction by the Division Bench in the aforesaid two LPAs directing the Board to make recruitment on regular basis.
Therefore, we are not able to agree with the finding of the Ld. Single Judge in the impugned order that the Board could not have resorted to a fresh selection process once again for making temporary engagements for transition period of 60 days and that the private respondents were right in their submission that in terms of the directions issued by the Division Bench they were entitled to continue till a fresh selection process is conducted and the posts held by them are regularly filled up.
The Ld. Single Judge also held that the Board has not conducted any fresh selection process for filling up the posts on regular basis, and therefore, as per mandate of the directions of the Division Bench, the private respondents were entitled to continue till they are replaced by incumbents substantively appointed pursuant to the selection process and accordingly, the employment Notice issued by the Board was held to be contrary to and in violation of the Division Bench judgement dated 11.10.2010.
(xvi) We are of the view that no direction could have been issued by the Ld. Single Judge to regularise the services of the private respondents without first ascertaining as to whether there are regular vacancies or not, -20- especially in the light of the stand taken by the Board that there were no regular vacancies of Desk Jobs which were sought to be filled up on consolidated basis.
26. Under the facts and circumstances and for the reasons discussed above, we are of the opinion that the impugned judgement and order dated 24.10.2018 passed by the ld. Single Judge in SWP No. 367 of 2013 and SWP No. 157 of 2016 cannot be sustained in law and accordingly, the same is set aside.
Consequently, the Jammu and Kashmir Board of School Education is directed to complete the process of recruitment initiated under the employment Notification issued under Notice No. F(Admn-B)CU/13 dated 09.02.2013. Since, it has been stated that the written test and interview are over, there should not be any difficulty on the part of the Board to declare the result.
Accordingly, we direct the Board to declare the result within a period of one month and make appointments in terms of the advertisement and the result so declared immediately, irrespective of whether any of the selected candidates in the meantime has crossed the age limit fixed in the advertisement. Those private respondents who had taken part in the said selection process and have been selected, their engagements may not be disturbed. Since their engagements were continued by virtue of the direction of the Division Bench in LPASW No. 64 of 2007 and LPASW No. 61 of 2007 by way of an interim measure, till fresh selection is made, once fresh selection is made in terms of the aforesaid employment Notice dated 09.02.2013, except for such private respondents who are found successful in the said recruitment process initiated in 2013, the private respondents cannot continue in service and they have to be disengaged. -21-
27. We are of the view that the relief claimed in SWP No.2631/207 is taken care of by the directions issued in the above referred three LPAs‟ and is accordingly allowed in terms of the aforesaid observations and directions.
28. However, inspite of the aforesaid directions for disengagement of the private respondents, considering the fact that the private respondents have been continuing in service for about 19 years as of now and have gained experience, the Board would be at liberty to engage them without adjusting with any of the posts already advertised by the employment Notice dated 09.02.2013, if there are sufficient number of selected candidates. In other words, after filling up the posts advertised under employment Notice dated 09.02.2013 as per the select list prepared, if the Board so desires, the Board will be at liberty to continue with the engagement of the private respondents with the Board.
29. With the above observations and directions, all the three LPAs, LPA No.1 of 2019, LPA No. 2 of 2019 and LPA No. 79 of 2019, are allowed by setting aside the judgment and order dated 24.10.2018 passed by the Ld. Single Judge in SWP No. 367 of 2013 and SWP No. 157 of 2016.
30. SWP No.2631 of 2017 is allowed to the extent indicated above.
31. Other connected applications, if any pending, stands disposed of in the light of the above directions.
(VINOD CHATTERJI KOUL) (N.KOTISWAR SINGH)
JUDGE CHIEF JUSTICE
JAMMU
08.06.2023
SUNITA/PS