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2000 DIGILAW 108 (JK)

Riyaz Ahmad Bhat v. State

2000-05-22

SYED BASHIR-UD-DIN

body2000
1. Petitioner™s case is that on the eve of parliamentary elections of 1998 on assurance of respondents of absorption in Police Department, they joined as drivers for election duty and they were deputed to Dy. Superintendent of police Security and has MTO-respondent No. 5 for duties (annexure A,B & C). They worked as drivers during the election period with different VIPs from time to time. After the elections were over and despite the fact that they worked although, they were neither brought on regular establishment nor absorbed in the police department as drivers. The representations made to State Functionaries and Officers evoke no response. Despite being assured permanent employment before joining as drivers for election duty, respondents drag their feet and have come up with list of drivers vide orders No. 1875 of 99 dated 2.6.99 and order No. 1876 of 99 dated 2.6.99 (annexure L & M) impugned in this petition. Both orders are prayed to be quashed and the selectees/appointees as drivers ordered under the impugned orders are sought to be ousted, and petitioners prayed to be allowed to work. 2. Respondents in reply have not denied the engagement of petitioners as drivers during the relevant period due to felt necessity of utilization of services of drivers during parliamentary elections, but the contention of any assurance or promise or absorption of petitioners as drivers permanently or on regular basis is refuted. It is stated that the drivers in the Police Department are to be appointed in accordance with police rules, where care is taken of physical standards, outdoor tests, written and interview and of special test for driving vehicles. No assurance could be given by the State when the recruitment rules operate in the field, so far as respondents could not have created a mode of recruitment dehorse the rules. The petitioners were engaged temporarily for a short period for election purposes and nothing more. The drivers who have been taken on regular basis, have been appointed on proper selection, in terms of rules, on merits. It is contended that in absence of arraying the selected/appointed candidates as respondents, the writ petition is not maintainable, insofar as the prayed relief of quashment of selection/appointment order is going to adversely affect these selected/appointed candidates. Heard. 3. The drivers who have been taken on regular basis, have been appointed on proper selection, in terms of rules, on merits. It is contended that in absence of arraying the selected/appointed candidates as respondents, the writ petition is not maintainable, insofar as the prayed relief of quashment of selection/appointment order is going to adversely affect these selected/appointed candidates. Heard. 3. No document/material is placed on record to show any assurance of petitioner™s absorption on regular basis as drivers in Police Department while engaging them for parliamentary election duty in 1998. 4. Even pleadings thereto do not speak of any such assurance or promise is based on any material or document with either of the parties. The engagement orders (annexures A-C) do not speak of any such assurance. The above documents placed on record also do not show any such promise or assurance. This apart selection/appointment to the posts of drivers in the police department is governed by the police rules, providing and taking care of physical standards, outdoor tests, written and oral interview and test for driving vehicle of the concerned candidates. The assurance cannot be in breach of or dehorse the rules. Obviously the contention is not well found. 5. Petitioners have also sought certiorari for quashing impugned orders dated 2.6.99 (Annexures L&M). Both these orders are selection lists of Constable Drivers on recruitment. As many as 138 constable drivers have been appointed and selected for appointment with directions to SSP Srinagar for issuance of appointment orders, Mr. Qadri submits that these persons have been since appointed. None of these persons has been arrayed as a respondent in the petition. Any direction that would operate to dislodge these appointed candidates cannot be given in absence of appointees (unarrayed as parties) and without affording them an opportunity of being heard. They are necessary party. No writ or order can be issued so as to adversely affect them. Further no effective relief can be given to petitioner without impleading these persons. (SEE Jeetender Kumar Vs Union of India and ors., AIR 1991 S.C. 240, AIR 1999 S.C. 562). Also see Ishwar Singh™s case (1995 Supp (1) SCC 179) and J. Jose Dhanpal Vs S. Thomas (1996)3 SCC 587). In Prabodh Verma Vs State of UP (AIR 1984 SCC 251 at page 273) the Supreme Court observed:- ... (SEE Jeetender Kumar Vs Union of India and ors., AIR 1991 S.C. 240, AIR 1999 S.C. 562). Also see Ishwar Singh™s case (1995 Supp (1) SCC 179) and J. Jose Dhanpal Vs S. Thomas (1996)3 SCC 587). In Prabodh Verma Vs State of UP (AIR 1984 SCC 251 at page 273) the Supreme Court observed:- ... A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Singh™s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so. Ought to have dismissed that petition for non-joinder of necessary parties.� In case of Arun Tewari and others (AIR 1998 S.C 331) same view is reiterated and law as in prabodh Verma™s case (Supra), is pointed out to hold the field. In result, for the aforesaid reasons the writ petition is dismissed without being admitted to hearing.