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2003 DIGILAW 278 (JK)

Shamim Ahmad v. State Of J. &K.

2003-09-12

S.K.GUPTA

body2003
The Petitioners were appointed on stop-gap arrangement as Laboratory Assistant/Library Assistant and Junior Assistant against the available vacancies existing in different Government Primary/Middle/Higher Secondary Schools in District Rajouri by the Chief Education Officer till the posts are regularized/filled by Competent Authority. These appointments were made in the year 1999 vide orders dated 27-5-1999. Later on these appointments were ordered to be kept in abeyance by the Government vide its order No. 552-GAD of 2000 dated 17-5-2000. Aggrieved by the aforesaid order, the petitioners preferred this Petition seeking issuance of a writ in the nature of mandamus directing the respondent authorities to allow them to resume their duties and regularize services of the petitioners in view of the Policy decisions of the Government. Further directions were sought by the petitioners, for the release of their salary for the period they actually worked, by the respondents. 2. The stand taken by the respondents in their demurrer is that the petitioners were working on stop-gap-arrangement till the posts were filled up by Service Selection Board. The appointments were made by the then Chief Education Officer. That the class IV employees have been appointed as per the Government instructions and paid Rs. 1,200 per month. The present writ petition pertains to the class III category, which is entirely different from class IV employees of the Education Department and these two cadres are not synonymous to each other. That the appointments in stop-gap-arrangement does not vest any right on the petitioners to hold a post or seek regularization. It is not disputed that the appointments of the petitioners on stop-gap-arrangement were without any advertisement or following the procedure for selection to the posts(s). An appointment in stop-gap-arrangement is only a temporary appointment, pending regular recruitment without conferring any right of regularization of services. Such appointees, the petitioners in this case, have no right to hold the posts to which they were appointed as such. Such employees have no right of regularization even if they hold the posts for more than one year or for a longer period. Government order dated 17-5-2000, by which the appointments of the petitioners, along with others, were kept in abeyance with retrospective effect, for facility of reference, reads as under : "Government of Jammu and Kashmir General Administration Department. Subject : Illegal appointments in District Rajouri. Reference : Letter No. Edu/I/Apptt/36/2000, dated 4.4.2000 for Education Department. Government order dated 17-5-2000, by which the appointments of the petitioners, along with others, were kept in abeyance with retrospective effect, for facility of reference, reads as under : "Government of Jammu and Kashmir General Administration Department. Subject : Illegal appointments in District Rajouri. Reference : Letter No. Edu/I/Apptt/36/2000, dated 4.4.2000 for Education Department. Government Order No. : 552-GAD of 2000 Dated : 17-5-2000. In partial modification of Government Order No : 307-GAD of 2000 dated 13.3.2000, it is hereby ordered that 89 (Eighty nine) appointment orders in respect of the various categories, as indicated below, issued by the Chief Education Officer, Rajouri, without observing the selection procedure as set out in the rules i. e. without reference of these posts to the Jammu and Kashmir Service Selection Board are hereby kept in abeyance, with retrospective effect:- Laboratory Assistant 06 Library Assistant 25 Junior Assistant 04 By order of the Government of Jammu & Kashmir. (Sd.)........................... Under Secretary to Government General Administration Department. No. GAD (MTG)RB-IV/99/71 dated : 17-05-2000." 4. This order clearly enumerates that the orders of appointments were issued by the Chief Education Officer, Rajouri, without observing the selection procedure and referring the posts to the Jammu and Kashmir Service Selection Board. It is further borne out from the order that the stop-gap-arrangements of the petitioners ceases to exist by the aforesaid Government Ord er from 17-5-2000. They are now no longer in service on account of stop-gap-arrangement in the Education Department. An adhoc or a stop-gap-arrangement appointee cannot remain in respective post to the detrimental of the regular selectee. 5. It is an established reality that the authorities have been resorting to make appointments, which have been termed as adhoc/temporary or stop-gap. These appointments have been for short duration sometime with stipulation or sometime without stipulating that a person in whose favour such an appointment order has been issued shall remain on the post till the selection of a regular candidate is made by the Service Selection Board. This Policy of the adhocism adopted by the State and its instrumentalities has resulted into multi-dimensional litigations. These appointments continued to exist, though the system of adhocism is made only for a limited period, without conferring any right on the appointee to hold the post or seek regularization. 6. This Policy of the adhocism adopted by the State and its instrumentalities has resulted into multi-dimensional litigations. These appointments continued to exist, though the system of adhocism is made only for a limited period, without conferring any right on the appointee to hold the post or seek regularization. 6. If appointment is made to meet the contingency and it is not possible to leave the post vacant, it will be appropriately called a "stop-gap-arrangement" and appointment in the post as "adhoc" appointment. 7. Mr. Tahir Khursheed Raina, learned counsel appearing for the petitioners, submitted that the class-IV employees appointed at the same time by the same appointing authority, whose appoints were also kept in abeyance, have been reinstated and, in some cases, the Government has also issued orders of regularization of their services. The petitioners are seeking parity with class IV employees. It is pertinent to point out that employees in category III, i.e., Laboratory Assistant/Library Assistant/Junior Assistant, who are distinct from class IV employees, cannot possibly build up a challenge based on discrimination, as they do not constitute one category. 8. Another limb of argument put across by Mr. Tahir Khursheed Raina, Petitioners Advocate, is that the petitioners are also entitled to benefit of Government order No. 1285-GAD of 2001 dated 06-11-2001, which envisages of all the adhoc appointees to non-gazetted posts recruited from time to time beyond 29th December, 1988 till the date of issue of the order, who are still in service, be considered for regularization after completing seven years of continuous service. It is not in dispute that the petitioners are no longer in service. Their appointments were on adhoc arrangement and continued only for one year till the Government Order dated 17-5-2000 was issued and by which their appointments were kept in abeyance. They have not completed seven years of service to seek regularization in terms of the aforesaid Government Order dated 06-11-2001 and, thus, cannot claim benefit under the said Government Order. The order passed by the Government in keeping adhoc appointments of the petitioners in abeyance is not, in any manner, contrary to law. Interference by the Court in administrative action is justified only when its exercise is manifestly in arbitrary manner by the concerned authority or when the decision suffers from illegality, irregularity or procedural impropriety, which is not the position in this case. Interference by the Court in administrative action is justified only when its exercise is manifestly in arbitrary manner by the concerned authority or when the decision suffers from illegality, irregularity or procedural impropriety, which is not the position in this case. Selection by advertisement ensures an equality of opportunity to all to compete. This is the mandate of Article 14 of the Constitution and requirement of principles of fair play. By adopting the procedure for selection prescribed by law excludes arbitrariness and envisages the best selection. For what has been stated and discussed above, there is no merit in this writ petition and is accordingly dismissed. 9. It is, however, observed that the petitioners be paid their salary for the period they have actually worked. This would be done within a period of two months from the date copy of the order passed by this Court is made available by the petitioners to the respondents and their counsel as well.