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2001 DIGILAW 221 (JK)

Khurshid Ahmad Mir v. State Of J. &K.

2001-09-21

NISAR AHMAD KAKRU

body2001
1. By medium of this writ petition, a writ of mandamus is sought to require the respondents to allow the petitioner to continue on the post of an orderly till appointment is made substantively. The order of appointment may be noticed: "Shri Khurshid Ahmad Mir S/o Gh. Nabi Mir R/o Avind gund Tehsil & District Pulwama who is already working as Care Taker in Revenue Guest House Pulwama is hereby appointed as Orderly in Revenue Guest House Pulwama in the pay scale of Rs. 2550-3200 for 89 days against the post of Junior Assistant lying vacant in the S.D.M. office Shopian under head 2506-Agr. with immediate effect. The said post is hereby attached to this office for drawal of his pay till further orders." 2. A plain reading of the order reveals that the respondent No. 2 was fully alive to the fact of non availability of the post of Orderly. It is also very clear from the order itself that the services of the petitioner were otherwise also available to the Guest House yet the respondent No. 2 has made the appointment. The course opted for by the respondent No. 2 does not appear to have originated from any exigency of service much less public interest. Conversely, it is an endeavour on the part of the Deputy Commissioner to bestow a favour of a regular pay scale upon the petitioner notwithstanding non availability of the post. 3. The petitioners claim to continue on the post till it is substantively filled up needs to be appreciated in the light of the fact that substantive appointment on the post could only be possible if the post would be available. Text of the aforementioned order relied upon by the petitioner makes it abundantly clear that appointment of the petitioner is on no post, obviously his prayer to allow him to continue on the post of orderly till it is filled up is bereft of any reason, justification or legal substance. Moreso, it is a matter of common knowledge that an appointment cannot be made without existence of a post. To be specific, existence of a post for substantive or adhoc appointment is a condition precedent. Admittedly the post of orderly is not vacant. It being so, continuation of the petitioner on a non existent post is out of question, therefore, not entitled to the relief prayed for. 4. To be specific, existence of a post for substantive or adhoc appointment is a condition precedent. Admittedly the post of orderly is not vacant. It being so, continuation of the petitioner on a non existent post is out of question, therefore, not entitled to the relief prayed for. 4. It was next contended that the respondent No. 2 has initiated process to replace the petitioner by a similar arrangement. Suffice it to say that the appointment against a non existent post is an abuse of authority and if it is repeated, it shall be obligatory upon the Govt. to take action in accordance with the law against the officer responsible for such action. Be it placed on record that by making this observation, I do not mean to say that the State cannot deal with the past event of administrative and financial irregularity represented by the facts of this case and hopefully they will take its cognizance. 5. It was further contended that the court has granted interim reliefs in many petitions involving similar facts. No specific instance has been brought to the notice of the court. However, it may be observed that there are instances of persons who have been adjusted against migrant vacancies and the court has undoubtedly protected such employees from time to time during the turmoil but the circumstances and the facts of those cases prompting the co-ordinate benches of this court and ultimately full bench to display indulgence are not similar to the facts of this case, therefore, ad interim directions pressed into service have absolutely no application to the case on hand, otherwise also such precedents are of no help to the petitioner because same do not bind the court. 6. In the aforementioned back drop, this writ petition fails. Dismissed in limine alongwith CMPs. Interim direction, if any, shall stand vacated. Registry shall forward a copy of this order to the Chief Secretary for further necessary action at his end, if any, called for.