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2000 DIGILAW 90 (JK)

Aslam Mohi-ud-din v. State Of J. &K.

2000-05-08

SYED BASHIR-UD-DIN

body2000
1. In all eight petitioners who were engaged as Lecturers in different subjects for specified duration in Government Degree College (Boys) Anantnag in terms of Government Order No:504/HE dated 15-12-1993. have petitioned that the Govt. in exercise of powers vested in it under J & K Civil Services (Classification, Control and Appeal) Rules, 1956 and Jammu and Kashmir Education (Gazetted) Service Recruitment Rules, 1977, appointed them as Lecturers against clear vacancies on probation for a period of two years and in the event of period of probation being completed satisfactorily the petitioners automatically stand confirmed, thereby getting appointed substantially to the posts. The Writ is prayed for treating the petitioners accordingly as confirmed Lecturers followed by consequential relief of having earned graded emoluments and other service benefits. 2. After the writ petition was admitted to hearing on 02-02-1996, the respondents have filed detailed reply/counter. Respondents have contested petitioners claim of having been appointed against the posts as alleged. It is averred that the petitioners were engaged as Lecturers in the shown disciplines on contractual basis for a period of 60 days or till the end of the academic session on consolidated pay. In the order of taking services of petitioners by respondents (Annexure-A) it is shown that the engagement of petitioners is purely to serve the academic arrangement in the College for the particular academic session. Petitioner™s engagement is purely on contractual basis on consolidated pay for specified period. They are not appointed or even engaged in a specified post. These posts could be filled up/recruited by the Public Service Commissioner in-accordance with the provisions of rules governing the field of recruitment of candidates in Gazetted Service of the Higher Education Department of the State. The Public Service Commission had done so and the arrangements ordered have automatically come to end with the appointments of Lecturers covered by Government orders of October and November 1994, as referred to in Para 3 under head ˜preliminary objections™, of the counter. It is only after a person is appointed under provisions of Jammu and Kashmir Education Gazetted Service Rules. 1977, read with Section 133 of the Jammu and Kashmir Constitution, that the person can be said to be appointed against the substantive vacancy, so as to count his probation of two years, followed by confirmation in terms of procedures envisaged by Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. 1977, read with Section 133 of the Jammu and Kashmir Constitution, that the person can be said to be appointed against the substantive vacancy, so as to count his probation of two years, followed by confirmation in terms of procedures envisaged by Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Petitioners not being members of the service, therefore, the question of their being on the probation followed by subsequent confirmation on conditions and terms of the rules, does not arise. 3. Counsel for the parties are heard. 4. Mr. Mufti Showkat, tenders a statement that as on the day he has prosecuted and argued the matter only on behalf of petitioners 1 and 8, as in case of other six petitioners, he has no instructions. This statement and presentation of Mr. Mufti Showkat is noted. 5. It may be mentioned that petitioners 1 and 8, has also the other non appearing petitioners are not in any respect at variance so far as the grievance projected and the relief prayed in the petition is concerned. Their case enblock is one and the same. It is seen that the impugned order 504-/HE dated 15-12-1993, (Annexure-A) speaks of engagement of the petitioners as Lecturers in the indicated subjects for the period(s) shown against each as a pure academic arrangement in Degree College (Boys) Anantnag, for the Session 1993-94. They have been engaged on the consolidated payment of Rs.3500 P.M. The engagement of the petitioners was initially ordered by Principal Govt. Degree College (Boys) Anantnag. The Government through Higher Education Department has confirmed this arrangement in the form of Order, Annexure-A. The engagement ex-facie is purely adhoc to serve the cause of education and with a view to tied over the administrative exigencies relatable to academic arrangement for the academic Session 1993-94. Use of words œconsolidate payment of 3500 P.M.�, period indicated against each, go to show that the arrangement is purely on temporary basis for a fixed period of 60 days or till end of academic Session in the College, on consolidated payment. 6. The post of Lecturer in higher Education is a Gazetted post on the cadre of J&K Educational (Gazetted) Service. 6. The post of Lecturer in higher Education is a Gazetted post on the cadre of J&K Educational (Gazetted) Service. The post can be filled in accordance with J&K Educational (Gazetted) Service Recruitment Rules, 1977, framed under Section 124 of the Constitution of J&K and Section 133 of the J&K Constitution parameteria� with Article 320 of the Indian Constitution. The recruitment to the post on the service have to be on compliance with the aforesaid constitutional provisions and the rules. The selection and appointment as Lecturers, to the post(s) on the cadre of the service has to be on the recommendation of the Jammu and Kashmir Public Service Commission. Obviously, the posts sought to be filled up by the Commission in accordance with the procedure which has to be just, fair and reasonable in compliance with the requirements of Article 14 and 16 of the Constitution of India. It is only after selection/appointment is made in accordance with recruitment rules and the constitutional provisions, that a person can be said to be member of the Higher Education Gazetted Service and in which case alone the person so appointed shall be said to be on probation of two years with confirmation to follow in terms of the J&K Services (Classification, Control and Appeal) Rules, 1956. The law does not visualize appointment on probation dehors applicable rules of recruitment. The Government is not empowered and cannot make appointments in violation of and beyond rules. Executive has powers of ordering exigencies, but that does not mean that the Govt. is empowered to bye-pass and ignore the recruitment rules. The engagement/ adhoc arrangements have to give way to regular appointments made in accordance with rules. 7. In J&K Service Commission, etc. Vs. Dr. Narinder Mohan and others, {AIR 1994 SC: 1808) in the context of appointment of Lecturers to J&K Medical Education Gazetted Service, interms of rules of 1979, the following observation of the Apex Court apply on all fours to this case: ..... The rule prescribe 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, adhoc employee should be replaced as expeditiously as possible by direct recruits. The rule prescribe 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, adhoc employee should be replaced as expeditiously as possible by direct recruits. A little leeway to make adhoc appointment due to emergent exigencies does not clothe the executive government with power to relax the recruitment or to regularise such appointments to be 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-exist in the same sheath. 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.... Government cannot relax the rules or recruitment to be made by the PSC. Government have no power to make regular appointment under the Rules without selection by the Public Service Commission under Section 133 (1) read with Rule 5 and Schedule III of the Rules.� 8. Viewed thus, petitioners cannot succeed on merits of the case. They cannot be treated as substantively appointed. Appointment to the posts have to be in accordance with law and rules holding the field. Therefore, the petition cannot succeed. 9. The counsel for the two contesting petitioners submits, that these petitioners may be considered by the competent authority for engagement for the current academic session in so far as the exercise is on to find suitable candidates for engagement for the current academic sessions in various disciplines in the higher education. The petitioners are free to apply and the respondents may consider their engagement(s) on merits of each case fairly and justly, uninfluenced by the outcome of this writ petition. In result, the writ petition is dismissed.