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2001 DIGILAW 209 (JK)

Gh. Hassan Wani v. State Of J. &K.

2001-09-17

S.K.GUPTA

body2001
1. Petitioner, through the medium of this petition, seek to invoke writ jurisdiction of this Court for issuance of writ in the nature of mandamus directing the respondents to appoint petitioners as Class-I V employees and allow them to join their services from the date of order and be paid salaries in implementing the order "No. 158/91/Emp dated: 15-01-1991 passed by respondent No. 1, which reads as under:- "Government of Jammu and Kashmir Civil Secretariat Office of the Advisor M, Jammu. To The Deputy Commissioner, Pulwama No: 158/91/Emp Dated: 15-01-1991 Sir, I am directed to convey the approval of Advisor (M) to the H.E., the Governor to the engagement of following as Class-I V employees: 1. Ghulam Hassan Wani S/oAb.AzizWani R/o Bubhada Pulwama. 2. AbdulRazak Sheikh S/o Mohd Abdullah Sheikh R/o Growgund Pulwama. 3. Muzaffar Ahmad Dar S/o Ghulam Hassan Dar R/o Punjgam Pulwama. 4. Abdul Rashid Mir S/o Mohd Abdullah Mir R/o Chakaoora, Tehsil Pulwama. The above candidates may be ordered to join their place of posting after verification of following certificates:-a. State subject, b. Qualification, c. Character and Health. Order may be issued immediately with intimation to the office P.A. to Advisor M and the concerned candidates. Yours faithfully Sd/- (S.R. Gupta) Additional Secretary to Govt." 2. The case of petitioner depicted in narration is that their engagement/appointment as Class-IV employees in pay scale of 630-940 in district Pulwama was approved by respondent No. 1 by virtue of order dated: 15-01-1991, but respondent No. 3 instead shot back communication intimating that there are no Class-IV vacancies available in district Pulwama and sought clarification and further instructions in the matter. That respondent No. 1 against addressed a letter dated: 19-03-1991 in advising to adjust the candidates in district Pulwama, and the latter further directed respondent No. 4 for the adjustment of the petitioners in the Government Schools, viz, Govt. High School Pastona, Govt. High School Haariparigam, Govt. Girls-High School Noorpora and Higher Secondary School Ratnipora, where Class-IV posts are lying vacant, but till the petitioners had not been allowed to join by respondent-3 and 4 and various representations made in this behalf did not yield any positive response and fruitful results. High School Pastona, Govt. High School Haariparigam, Govt. Girls-High School Noorpora and Higher Secondary School Ratnipora, where Class-IV posts are lying vacant, but till the petitioners had not been allowed to join by respondent-3 and 4 and various representations made in this behalf did not yield any positive response and fruitful results. That so many other persons have been appointed by the respondents in the Education and other Government Departments in district Pulwama and the petitioners have been disrciminated against thereby denied the constitutional right of providing equal opportunities of employment guaranteed under the Constitution. No counter has been filed by the respondents. 3. Heard and considered the rival contentions of the parties. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps, but the instructions cannot be and should not be supplant the law, but would only supplement the law. The executive, having made the rules governing recruitment cannot fall back upon its general power under Article 162 to make the appointment, to regularise the appointment dehors the rules. As far as appointment to the posts of Class-IV employees in Education Department is concerned, the Rules of 1979 under Notification SRO 240 dated 23rd April, 1997 prescribe direct recruitment by selection through service Selection Board specifying the mode, qualification and other requirements for eligibility. Where Class-IV employees be appointed by the executive recommendations only through a letter to whom the petitioners turn it as order dated 15-01-1991 despite the fact that in the penultimate para of the said letter, it is clearly indicated that the order may be issued...... the rules do not contemplate that the appointment could be made by this method also. Apart from that, executive directions in the shape of a letter for recruitment not provided by the Recruitment Rules do no accrue any right to a person. 4. Of course, in the absence of any statutory rules in view of the appointment to any State services, the appropriate State may recruit a member to that service in any manner in exercise of its executive power under Article 162 of the Constitution provided the guarantees ontained in Articles 14 and 1 of the Constitution are not infringed. 4. Of course, in the absence of any statutory rules in view of the appointment to any State services, the appropriate State may recruit a member to that service in any manner in exercise of its executive power under Article 162 of the Constitution provided the guarantees ontained in Articles 14 and 1 of the Constitution are not infringed. If, however, there is an existence of statutory rules relating to an appointment as in the instant case, the executive is bound to abide by the relevant law or rule or has no jurisdiction to ignore out step or violate the same under the guise of executive power. 5. It is pertinent to point out that the communication relied upon by the petitioners dated: 15-01-1991 in taking it as an order from the executive in its texture, tone and tenor is not an order of the appointment or engagement to the posts of Class-IV employees so as to vest any right on the petitioners to any posts. In J&K Public Service Commission etc. Vs. Dr. Narinder Mohan and others, AIR 1994 SC 1808, the matter came up for consideration before the Apex Court and it was held as under:- "...More over, when the Rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement, which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply for by qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution. "The rules prescribe direct recruitment/ promotion by selection as the mode of recruitment which would be done only by Public Service Commission 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 appointment nor to claim such appointments to be regular or in accordance with rules. Back door adhoc appointments at the behest of power source or otherwise and antagonists and strange to rules are mutually co-exist in the same sheath. Back door adhoc appointments at the behest of power source or otherwise and antagonists and strange to rules are mutually co-exist in the same sheath. The former is in negation of fair play, the later are the product of order and regularity. In view of the Explanation-b to R-4, the adhoc appointments to any post in any of the three wings of the service under the rules are therefore dehors the rules and cannot be said to be in accordance with the rules." 6. Therefore, Government has no power to make appointment under the rules with out selection by a selection committee/board in terms of the recruitment rules. The Recruitment Rules of 1979 framed for the recruitment of Class- IV employees in the Education Department stand provided any executive power to make the appointment by executive directions dehors the rules. Letter dated 15-01-1991 to whom the petitioners denote it as an order for their appointment at the most can be termed as executive directions, which cannot be enforced through a judicial apparatus in exercise of its writ jurisdiction. The communication relied upon by the petitioners from S.R. Gupta, Additional Secretary to Government to the Deputy Commissioner, Pulwama is neither an order of appointment nor confers any right upon the petitioners to enforce any Court of law, but purely an executive direction in nature on which no consideration can even be claim in Court of law for a recruitment unless selection process mooted for recruitment under Recruitment Rules provided for the posts. 7. An order of appointment to a post passed by the State or its functionaries postulates (a decision by competent authority to appoint a particular person) incorporation of the said decision is an order of appointment; and see communication of the order of appointment of a person who is being appointed. All the three requirements must be fulfilled to an appointment to be effective. The context of the letter to whom the petitioners call it an order does not fulfill these requirements so as to call it an appointment order. I am unable to subscribe to the contention raised by the petitioners advocate as the letter dated 15-01-1991 is not an order, but an executive communication and, thus, does not vest any right on the petitioners to be enforced it in accordance with law. I am unable to subscribe to the contention raised by the petitioners advocate as the letter dated 15-01-1991 is not an order, but an executive communication and, thus, does not vest any right on the petitioners to be enforced it in accordance with law. What emerges from the aforesaid discussion is that there is no merit in this writ petition and is hereby dismissed. No orders as to costs.