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2001 DIGILAW 219 (JK)

Manjit Singh v. State

2001-09-21

R.C.GANDHI

body2001
1. Petitioner, by means of this writ petition, seeks issuance of writ of Mandamus directing the respondents to appoint the petitioner as Lecturer in Punjabi pursuant to his selection by the Public Service Commission. 2. Petitioner, pursuant to the recommendation of the Public Service Commission contained in letter No. PSC/GR-Edu-243/85 dated: 07-08-1985 was appointed as Lecturer (Punjabi) by the respondent No. 2 vide his order No. 151 GR of 1986 dated: 16-06-1986, and posted in Government Women College, Baramulla. The appointment order contained a stipulation that the appointee has to join against the post within a period of seven days. The petitioner was taken into preventive detention by the respondents in execution of the detention Order dated: 06-05-1986 passed by the Competent Authority in exercise of the provisions of the Jammu & Kashmir Public Safety Act, 1979. The petitioner being in preventive custody of the respondents could not join against the post. 3. He challenged the detention order by means of Habeas Corpus petition No. 175/1987 which came to be allowed vide order dated: 04-05-1987 setting aside the detention order. 4. Petitioner has averred in the petition that after he was released from the preventive detention, he approached the Principal, Government Women College, Baramulla, by means of an application, for joining against the post which the Principal rejected conveying to the petitioner that the post has since been filled up by the Administrative Department. He approached the respondent No. 2 also by submitting an application requesting therein that he may be allowed to join pursuant to his appointment order. Respondent No. 2 did not take any action. The petitioner, therefore, served a notice on 21-06-1988 through his advocate. Notice has been replied by the respondents but his grievance has not been redressed. 5. Petitioner seeks the relief prayed for on the grounds that he is entitled to join against the post pursuant to the selection and appointment made in the discipline of Punjabi, His services have not been terminated. The respondents were duty bound to decided the application of the petitioners which he presented for joining against the post. The petitioner could not join against the post because of the illegal order passed by the respondents creating circumstances beyond the control of the petitioner to join against the post. The respondents were duty bound to decided the application of the petitioners which he presented for joining against the post. The petitioner could not join against the post because of the illegal order passed by the respondents creating circumstances beyond the control of the petitioner to join against the post. The accrued right of employment of the petitioner has been taken away and denied to the petitioner by the respondents without any fault of the petitioner. 6. Respondents have filed the reply affidavit stating therein that the petitioner is not entitled to the relief of joining against the post as he failed to report on duty within the stipulated period of seven days. It was the condition of appointment to join against the post within seven days and in the event of non-joining the appointment shall be deemed to have been cancelled. A notice dated: 18-07-1986 was also sent on the home address of the petitioner asking him to show cause why his order of appointment shall not be deemed to have been cancelled as he has not reported for duty. Notice was replied by his father stating therein that the petitioner is out of town. The post was readvertised and filled up by appointing Mrs. Surjeet Kour on the recommendation of the Public Service Commission. It is also submitted that there in no vacancy of Lecturer (Punjabi) existing even at present. 7. Petition is admitted to hearing and taken up for disposal at the request of learned counsel for the parties. 8. Heard learned counsel for the parties and perused the record. 9. It is not disputed that the petitioner on the date of issuance of the appointment order was in the preventive custody of the respondents and he immediately after release made an effort to join against the post which could not materialize for the reason that the post stood already filled up. Learned counsel for the petitioner has submitted that the vested right is created after appointment of the petitioner to hold the post, unless the petitioner incurs some disability to continue against the post. Petitioner cannot be deprived of his accrued right of employment because of any fault of the petitioner and the illegal order of detention passed by the respondents should not visit the petitioner with penalty of snatching away his appointment. In rebuttal Mr. Qadiri, Sr. Petitioner cannot be deprived of his accrued right of employment because of any fault of the petitioner and the illegal order of detention passed by the respondents should not visit the petitioner with penalty of snatching away his appointment. In rebuttal Mr. Qadiri, Sr. AAG appearing for the respondents has submitted that the plea of the learned counsel for the petitioner cannot be entertained for the reason that the petitioner failed to join against the post within the stipulated period specified in the appointment order which was condition of appointment. His further submission is that despite the notice having been sent to his home, it was not brought to the notice of the respondents that he has been taken into preventive custody. It is also urged by him that the post against which the petitioner was selected and appointed stood filled up and he cannot be permitted to join against any future vacancy against which he has not been selected, though it is categorically stated by the respondents that there is no such post available in the Department. 10. The question before the court is as to whether because of the action of the respondents creating a situation for the petitioner beyond this control to join against the post, the petitioner is entitled to any relief under such circumstances. In view of the categorical stand taken by the respondents that there is no post of Lecturer (Punjabi) in the Department, therefore, petitioner is not entitled to the relief prayed for to join against the post. No direction can be issued for joining of the petitioner unless there is a pre-existing post and in absence of the post if any such direction is issued, it shall be sheer abuse of the power as held by the Supreme Court in Himachal Roads Transport Corporation V. Dinesh Kumar (AIR 1996 SC 2226) holding that:- We are of the view that the Himachal Pradesh Administrative Tribunal acted illegally and without jurisdiction in passing the orders dated 27.3.1995 and 6.3.1995 and in directing that the respondents be appointed in the regular clerical posts forthwith. 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 a person when vacancies are not available. 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 a person 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 unauthorised.� 11. Another reason for not granting this relief to the petitioner is that the post was re-advertised by the Public Service Commission and one Surjeet Kour was selected and appointed against the post by a subsequent order. The petitioner was aware of the fact which is contained in the counter affidavit and despite that he has not made any effort to challenge the subsequent order whereby Surjeet Kour has been appointed against the same post. Unless the subsequent order is challenged, petitioner is not entitled to the relief in view of the law laid down by the Supreme Court in Pyare Lal Vs. Union of India and others (AIR 1975 SC 650) holding that:- ...It was also contended on behalf of the appellant that he was entitled as of right to be promoted to the Selection Grade post as also to the post of Deputy Inspector General of Police merely on the basis of seniority and the two orders dated 20th October, 1966 promoting officers junior to him to these posts, therefore, amounted to withholding of promotion by way of penalty and that attracted the provisions of the All India Services (Discipline and Appeal) Rules, 1955. We do not think we can entertain these contentions urged on behalf of the appellant against the validity of the two orders dated 28th October, 1966 since there is no challenge to these two orders in the petition..." 12. It is also submitted by Mr. Qadiri, Sr. AAG that since the petitioner has not joined against the post, therefore, simplicitor order of appointment has not created any right of employment. The petitioner, thus on this score, also is not entitled to the relief prayed for. In support of his submission he has relied upon the judgment delivered by the Supreme Court in Dr. J. Shashidhara Prasad vs. Government of Karnataka and others, reported in 1999 SC 849 wherein the appellant was appointed as vice Chancellor and on the next day the order was withdrawn before the appointee could join. In support of his submission he has relied upon the judgment delivered by the Supreme Court in Dr. J. Shashidhara Prasad vs. Government of Karnataka and others, reported in 1999 SC 849 wherein the appellant was appointed as vice Chancellor and on the next day the order was withdrawn before the appointee could join. Dealing with the plea that the petitioner is entitled to the appointment once the order of appointment has been issued, the Supreme Court has held as under:- Held, till the order of appointment of service could become effective no right under the order had vested in the incumbent and it was, therefore, not necessary to grant him hearing before the appointment order was cancelled. Appellant may or may not have accepted the offer and till the order came into force no vested right could have arisen. Consequently, no opportunity was required before canceling the said order." The petitioner, under such circumstances, could not made out any substantial ground for the relief prayed for. Thus, for the aforesaid reasons, the petitioner is not found entitled to the relief prayed for. Petition fails and is accordingly dismissed.