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2001 DIGILAW 56 (JK)

S. Saran Singh v. State Of J. &K.

2001-02-27

R.C.GANDHI

body2001
JUDGMENT 1. Petitioners seek issuance of writ of Certiorari to quash Government Order No. 144-H and FW of 1999 dated 15.3.1999 and further direction to regularise their promotions and to give them consequential benefits including salary and seniority. 2. Petitioners while working as Class IV employees were promoted by the Chief Medical Officer, Anantnag, Respondent No. 4 vide different orders dated 24.1.1998 to the post of para-Medical Assistant, Basic Health Worker, Junior Health Inspector and multipurpose worker. Against the resultant vacancies cause vacant to the promotions of the petitioners, the respondent no. 4, made appointment of Class IV employees also. The respondents having found these promotions and appointments made by the respondent no. 4 in violation of the rules and the procedure prescribed vide impugned Government Order cancelled the appointments. 3. The impugned order has been challenged by the petitioners on the ground that the petitioners have been promoted against promotional posts in accordance with the procedure and the law. Rules contained in SRO 20 of 1992 cannot be made applicable to the case of the petitioners as the proposed draft rules made a provision for promotion of the petitioners, class IV employees, to the promotional posts, against which petitioners have been promoted. The Department Promotion Committee was never convened to assess the suitability of the petitioners as directed by the court. Before passing the order of cancellation of the promotions of the petitioners, principles of natural justice have not been followed. 4. Respondents have filed objections stating therein that the respondents no. 4 has promoted the Nursing Orderlies/ Class IV employees to the posts of Basic Health Worker, Health Inspectors, Junior Health Inspectors, Multi-purpose workers without competence, jurisdiction and in breach of the rules. The promotions are made to the next higher post strictly on the basis of seniority which has been maintained by the Department at Divisional level. The respondent no. 4 was not competent to promote the petitioners unless they are recommended by the Departmental Promotion Committee after considering their suitability under rules. The petitioners had earlier filed SWP No. 599/1998 which was disposed of on 28-8-1998 directing the respondents to convene DPC for considering the cases of the petitioners and pass appropriate orders on the recommendations of the DPC. 4 was not competent to promote the petitioners unless they are recommended by the Departmental Promotion Committee after considering their suitability under rules. The petitioners had earlier filed SWP No. 599/1998 which was disposed of on 28-8-1998 directing the respondents to convene DPC for considering the cases of the petitioners and pass appropriate orders on the recommendations of the DPC. Pursuant to the directions of the court, DPC was convened on 24-11-1998 and after considering cases of the petitioners, they have not been found eligible to seek consideration being not the source for promotional posts. There is no provision in the rules for promotion, to the post of Basic Health Worker, Para Medical Assistants and Junior Health Inspector of Class IV Employees. The promotion orders made by the respondent no. 4 were found in violation of the recruitment rules known as Jammu and Kashmir Health and Medical (Subordinate) Service Recruitment Rules of 1992 (hereinafter to be called as the Rules) notified under SRO 20 of 1992. The Administrative Department considered the promotions/ appointments made by respondent no. 4 and having come to the conclusion that the promotions and appointments to Class IV posts made by the respondent no. 4 being against the statutory rules and abuse of the power, cancelled the promotions of the petitioners vide the impugned government order. The petitioners have been reverted to their original Class IV posts and are not working against the promotional posts. The direct recruits against the resultant vacancies which fell vacant due to the promotion of the petitioners have also been ousted. The provisions of SRO 20 of 1992 have not been amended though a proposal has been mooted and is under consideration. 5. Heard learned counsel for the parties, perused the pleadings and other evidence on record. 6. The plea of learned counsel for the petitioner that the respondents have not convened the DPC as directed by the court in SWP No. 569 of 1998 has no substance. The respondents have specifically stated in the objections that the DPC was convened on 24-11 -1998. The case of the petitioners were considered by the DPC and have been rejected. 7. The plea of the learned counsel for the petitioner that promotions of the petitioners have been made in accordance with law is also misplaced. The respondents have specifically stated in the objections that the DPC was convened on 24-11 -1998. The case of the petitioners were considered by the DPC and have been rejected. 7. The plea of the learned counsel for the petitioner that promotions of the petitioners have been made in accordance with law is also misplaced. Promotion to the higher posts are required to be made in accordance with the procedure prescribed by rules known as Jammu and Kashmir Health and Medical (Subordinate) Service Recruitment Rules of 1994. Rule 16 thereof envisages that the promotion to the next higher post shall be made on the recommendations of the DPC. Respondent No. 4 has made the promotions without the recommendations of the DPC which is in breach of the statutory rules and this is an abuse of the power. Promotions to the post of Basic Health Worker have been made of the Nursing Order-lies and other Class IV employees. The source for promotion to the post of Basic Health Worker under the Rules is only Field Workers And Arabic Teacher. No Arabic teacher or Field Worker has been promoted to the post of Basic Health Worker. 8. Para-Medical Assistant post is available for promotion only to Multi-purpose workers with five years experience. This has also not been complied with posts of multi-purpose workers is to be filled up 100% by direct recruitment and is not available to Class IV employees, such as petitioners for promotion. The post of Junior Health Instructor is to be filled up from amongst the basic Health workers. This has also not been complied. The promotions, therefore, of the petitioners are quite in violation of the rules and illegal exercise of power rather an abuse of the power by the appointing authority. The respondents after considering the promotions of the petitioners have rightly cancelled the promotions as the petitioners were not eligible to seek promotion to the posts against which they have been promoted and such promotions cannot be allowed to stand being made in violation of the statutory provisions of the rules governing the service. Therefore, the order of respondents cancelling the promotions of the petitioners cannot be faulted. 9. Therefore, the order of respondents cancelling the promotions of the petitioners cannot be faulted. 9. The next plea of the learned counsel for the petitioners is that the provisions of SRO 20 of 1992 are not applicable to the cases of the petitioners and therefore the respondents action in cancelling the promotions is illegal. This argument has been advanced on the basis that the respondents have proposed amendment to the rules for making provisions of promotion to the Class IV employees against these posts. Respondents have also admitted that the proposal has been mooted which is under consideration. The proposed amendment to the rules is no substitute to the existing statutory rules unless the statutory rules are amended the proposed amendment has no significance and cannot be made applicable as a substitute to the rules. This plea of learned counsel is mis-conceived, therefore rejected. 10. Lastly learned counsel has submitted that the principles of natural justice have not been followed by the respondents as the petitioners have acquired a right to hold the promotional posts and should not have been condemned unheard. The promotion order could not have been cancelled without providing opportunity of being heard. 11. It has been observed in the preceding paragraph that the promotions of the petitioners being illegal, are un-sustainable. Illegal order of promotion does not create any enforceable right in the petitioners. The principles of natural justice are not required to be observed as a formality. Even if an opportunity could have been granted to the petitioners, they were not in a position to improve their case to make out that their promotions are in accordance with law and justified. Where the petitioner cannot improve the case even despite an opportunity of being heard is granted to him, the principles of natural justice need not be observed as a measure of formality. The Apex Court while dealing with such a proposition has held in Rita Mishra vs. Director, Primary Education, Bihar and Ors., AIR 1988 Pat. 26, the Full Bench of the High Court has held that: - "Undoubtedly, the burden must lie on the petitioners and it is they who have to establish their claim on the basis of a valid appointment and not for the respondent state to prove the negative. 26, the Full Bench of the High Court has held that: - "Undoubtedly, the burden must lie on the petitioners and it is they who have to establish their claim on the basis of a valid appointment and not for the respondent state to prove the negative. The claim of a full dress industry after associating the petitioners in a writ of mandamus is plainly ill founded and does not lie in the mouth of the petitioners. On principle and even on the basis of precedent on which reliance was placed by the petitioners too, it is wholly settled that where the very original appointment to the service is invalid or forged or fraudulent to then in the eye of law there is no appointment at all and declaration by the State that the alleged appointment is non est does not attract any principle of natural justice. It is unncessary to elaborate this on principles because it is covered by the observation of the Full Bench in the aforementioned case of Bijoy Kumar Bharti (1983 Lab 1C 1984). Therein S. Sarwar Ali, Acting C.J. observed: - "... No one has right to be appointed irregularly. His position is that of a person who has no right to the post. There is no stigma attached in the removal do not think, therefore, that in such a situation there anything unfair in taking the decision without hearing the person likely to be affected". In his concurring judgment, N.P. Singh J. observed: - "... It cannot be disputed that when-ever the service of a person appointed on temporary basis is terminated saying that the appointment in question had been made in an irregular or illegal manner, it does not amount to any stigma or penalty. In my view such orders cannot be held to be invalid because before passing such orders opportunity to show cause was not given to the person concerned". Even at the cost of repetition, particular reference is called for afresh to the case of Diwakar Prasad Yadav vs. State of Bihar, (1986 Pat LJR 873) (supra) wherein B.P. Sinha, J. speaking for the Division Bench held as follows: - "To sum up I find and hold that the petitioners of these writ applications have not been validly appointed. They cannot challenge the impugned orders on the ground of alleged violation of principles of natural justice. They cannot challenge the impugned orders on the ground of alleged violation of principles of natural justice. I also hold that they are not entitled to any direction for payment of arrears of their salary for the period they claim to have worked". It would be manifest from the authoritative findings of the Full Bench and the Division Bench that even in case of termination of services, the rules of natural justice are not attracted where the original appointment itself is void abinitio. Now once that is so, no question of any rules of natural justice arises merely in the case of refusal of salary in an identical context". 12. Petitioners have been promoted in an arbitrary manner, in violation of the rules. Their appointments are illegal, therefore, they were not entitled to be heard before cancellation of the promotion orders as observed by the Constitutional Bench of the Apex Court in Managing Director ECIL vs. B. Karunakar, AIR 1994 SC 1074, holding that: - "The theory of reasonable opportunity and the principles of natural justice have been evolved to upheld the rule of law and to assist the individual to vindicate his just right. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether infact, prejudice has been caused to the employees or not n account of denial to him of the report has to be considered on the facts and circumstances of each case..." 13. No other point has been urged. 14. For the foregoing reasons, petitioners are not found entitled to the relief prayed for. Writ petition is accordingly dismissed.