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2005 DIGILAW 325 (JK)

Sham Lal Sharma v. State Of J. &K.

2005-11-29

PERMOD KOHLI

body2005
1. A common question of law based upon similarity of facts is involved in all these petitions and are accordingly heard together and being disposed of by a common judgment. 2. Sham Lal Sharma, petitioner in SWP: 1173/2002, was selected as Supervisor Cooperatives in district Kathua vide order dated 10.10.2001 on probation for a period of two years. He was in the waiting list which was published by Service Selection Recruitment Board while making selection for the posts of Supervisors. Pursuant to above said appointment, he joined his service and later removed vide impugned order dated 8.4.2002 by Registrar Cooperative Societies, Jammu. Rajeev Kumar, petitioner in SWP No: 1159/2002, also came to be appointed as Supervisor Cooperatives in district Udhampur from the waiting list where he figured at serial No:1 in the open a category vide order dated 28.2.2002. He was on probation for a period of two years and removed from service vide impugned order dated 8.4.2002. Altaf Hussain, petitioner in SWP No: 1152/2002, also came to be appointed as Supervisor Cooperatives in district Kathua out of waiting list where he figured at serial No: I in RBA category. However, his appointment was made against vacancy of SC category vide order No: Adm/J/2008-12 dated 4.10.2001. This petitioner also came to be removed vide impugned order dated 8.4.2002. 3. Impugned orders in all these petitions have been passed on grounds common to all. Perusal of impugned orders reveal following grounds: (i) that all these petitioners were in waiting list of their respective districts. Their appointments were allegedly made after expiry of the period prescribed under rule for operation of waiting list. (ii) that there were no vacancies against which these petitioners came to be appointed. (iii) that the appointments were made on concealment of fact. 4. Impugned orders were stayed vide interim orders passed by this court in respect to each of the petitioners. Petitioners have challenged impugned orders on the following grounds:- (i) that orders impugned have been passed in violation of the principles of natural justice. (ii) that departmental had the vacancies available against which petitioners came to be appointed. (iii) that power of review in terms of Rule 55 of J&K Civil Services (Classification , Control and Appeal) Rules of 1956 was exercised beyond time prescribed under Rule 57. (iv) that orders impugned are punitive in nature. 5. (ii) that departmental had the vacancies available against which petitioners came to be appointed. (iii) that power of review in terms of Rule 55 of J&K Civil Services (Classification , Control and Appeal) Rules of 1956 was exercised beyond time prescribed under Rule 57. (iv) that orders impugned are punitive in nature. 5. Respondents while resisting these petitions have defended passing of the impugned orders on the ground that vacancies against which Service Selection Recruitment Board had made selection were occupied by all the selectees. The appointments were made after expiry of period of the waiting list and these appointments being ex-facie, illegal, same were rescinded by the Competent Authority in exercise of power of review. 6. I have heard learned counsel for the parties. Admitted facts as emerge from record are: (i) that petitioners were in the waiting list having participated in the process of selection. (ii) That waiting list was operated upon and appointments came to be made after expiry of statutory period prescribed for making appointment. (iii) That while passing impugned orders, no opportunity of being heard was ever provided to the petitioners. 7. On scanning of the impugned orders, it is found that the petitioners have been removed from service on the grounds mentioned therein and noticed above. Two of the grounds are based upon legal propositions. However, the impugned orders contain stipulation that appointments were made on concealment of fact, nothing has been stated as to what was the concealment. Stipulation though vague but it casts stigma upon the petitioners. This itself necessitated grant of opportunity of being heard to the petitioners. This itself necessitated grant of opportunity of being heard to the petitioners which admittedly has not been provided before passing of impugned orders. As a matter of fact, impugned orders are liable to be quashed on this ground along. Two legal issues raised in the impugned orders are: (i) waiting list was operated upon beyond time prescribed and (ii) appointments were made when there were no vacancies. What has been stated in the reply is that selectees who were in the select list having joined their respective posts, there was no vacancy available for operation of the waiting list. In case of petitioner-Rajeev Kumar, admittedly one of the selectees resigned and Rajeev Kumar came to be appointed against resultant vacancy. What has been stated in the reply is that selectees who were in the select list having joined their respective posts, there was no vacancy available for operation of the waiting list. In case of petitioner-Rajeev Kumar, admittedly one of the selectees resigned and Rajeev Kumar came to be appointed against resultant vacancy. As far petitioner-Altaf Hussain is concerned, he was at serial No:1 of the waiting list in RBA category and had been appointed against SC category vacancy which was available as selectee from this category did not join. From perusal of the communication dated 1.12.2001 of Joint Registrar (Adm) Co-operative Societies Jammu addressed to Secretary, J&K Service Selection Board, Jammu it appears that an information was given to Service Selection Recruitment Board regarding resignation of one Ramesh Kumar, a selectee from open category and this communication was responded to vide letter dated 27.12.2001 whereby department was communicated that waiting list remains valid for a period of one year from the date of its issue. Similarly in the case of petitioner-Altaf Hussain, communication dated 29.3.2001 emanating from the offices of Joint Registrar to District Magistrate, Kathua seeking verification of antecedents was issued and vide letter dated 27.4.2001 verification was received. Matter was referred to Govt. vide letter dated 3.7.2001 in respect to petitioner-Altaf Hussain. Based upon the aforementioned communications, it is urged on behalf of the petitioners that process for operation of the waiting list commenced before expiry of the period prescribed for operating waiting list. 8. Admittedly, appointment orders came to be issued after expiry of one year as provided under SRO 332. Competency of Registrar for making appointments has not been disputed by the respondents. Though from record, it appears that process for making appointments was initiated before expiry of period of one year but fact remains that process culminated into appointments beyond period of one year. It is not case of the respondents that petitioners have obtained appointments on any misrepresentation of fact. As far vacancy position is concerned, detail of the vacancies has not been given. Though in case of Sham Lal Sharma, it is stated that all the seven selectees joined which included three selectees from open category, thus there was no vacancy. In absence of their being any thing on record about availability of vacancy as on date of appointments, no observation can be made regarding this. Though in case of Sham Lal Sharma, it is stated that all the seven selectees joined which included three selectees from open category, thus there was no vacancy. In absence of their being any thing on record about availability of vacancy as on date of appointments, no observation can be made regarding this. Petitioners are being paid salary from the date of their appointments. Respondents have not come forward to disclose as to against which vacancy salary of the petitioners is being disbursed. It is presumed that salary is being paid against some available vacancies in the category of supervisor cooperatives. In case of Rajeev Kumar, admittedly, vacancy had become available on account of resignation of one Romesh Kumar Similarly in case of Altaf Hussain also, vacancy was also available though not in his category. As far appointments of the petitioners against vacancies are concerned it is a different question. Whether petitioners should have been appointed against these posts or not is a question of fact. Petitioners participated in process of selection. All of them were in waiting list. They were appointed by the respondents of their own though beyond period prescribed for operation of waiting list. It can safely be presumed that appointments were made in relaxation of rules for which Govt. has definitely power. 9. Main contention of the petitioners is that they have been removed from service without afforded any opportunity of being heard. Petitioners were appointed on substantive basis though on probation. Their removal is not on account of dis-satisfaction of their conduct but on account of ground mentioned herein above. Admittedly, they were not served with any show cause notice nor any explanation was sought from them. Even if respondents had valid ground for passing impugned orders, at least principles of natural justice were to be observed. Registrar Cooperatives, who passed impugned orders, has exercised review power under Rule 55 of J&K Civil Services (Classification, Control and Appeal) Rules 1956. Competency to exercise suo-moto power by the authority cannot be denied. However, power can only be exercised within prescribed period in terms of Rules 57. It is settled preposition of law that whenever review authority has to exercise power of review and its result is likely to effect right of any person, principles of natural justice are to be observed. Mr. However, power can only be exercised within prescribed period in terms of Rules 57. It is settled preposition of law that whenever review authority has to exercise power of review and its result is likely to effect right of any person, principles of natural justice are to be observed. Mr. Bakshi submits that rule do not provide that petitioners were to be heard before passing of impugned orders. Apex Court has observed in various judgments that wherever an order to be passed is likely to effect civil right or result in civil consequence, principles of natural justice are to be read into the rule even if there is no specific provision. In case of Hardeep Singh Vs State of Haryana & Ors (408 Supreme Court Service Rulings Vol-13) Apex Court while considering question of observance of principle of natural justice even in case of probation thus observed as under: "5. There is no dispute that the petitioner was enrolled as a constable with effect from November 7, 1979 and he was on probation which is for a period of three years. It is also well settled that a probationer has no right to the post and if he is found by the concerned authorities to be unsuitable for the post during the probation period his service may be done away with. But nonetheless such a probationer has a right to have an opportunity of hearing against the order of dismissal/removal from service if the same is made in effect by way of punishment or the same casts a stigma on the service career of the petitioner. In other words if the order of dismissal/removal from the service is not one simpliciter on the ground that his service is no longer required but in substance and in effect the same is made by way of punishment, the probationer like the petitioner who has no right to the post is to be given an opportunity of hearing. If such an order of dismissal/removal from service is made without following the procedure envisaged in Article 311(2) of the Constitution of India as well as rule 16.24(ix) (b) of the Punjab Police Rules, 1923 the same will be illegal and bad and liable to be quashed. This position has been well settled by this Court in the case of P.L Dhingra Vs Union of India wherein it has been observed as under: "....... This position has been well settled by this Court in the case of P.L Dhingra Vs Union of India wherein it has been observed as under: "....... Passing on to Article 311 we find that it gives a two fold protection to persons who come within the article namely (1) against dismissal or removal by an authority subordinate to that by which they were appointed and (2) against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them. Incidentally, it will be noted that the word "removed" has been added after the work "dismissed" in both Clauses (1) (2) of Article 311. Upon Article 311 two questions arise, namely (a) who are entitled to the protection and (b) what are the ambit and scope of the protection. "....... Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post, if he had a right to the post as in the three cases hereinbefore mentioned. One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post, if he had a right to the post as in the three cases hereinbefore mentioned. The termination of his service will by itself be punishment and he will entitled to the protection of Article 311." "......ÿBut even if the Government has, by contract or under the rules the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduction in rank, the Government may, nevertheless, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. 10. In view of the above dictum of the aforesaid judgment and settled preposition of law noticed hereinabove, impugned orders are not sustainable in the eyes of law and same are hereby quashed. Petitions are accordingly allowed and appointments of the petitioners are held to he legal and valid. At this stage, Mr. Bakshi submits that respondents may be permitted to pass fresh order after observing principle of natural justice. Keeping in view the fact that appointments the fact that appointments were made about five years back and some of the petitioners might have become overage, no interference is warranted under writ jurisdiction. Prayer declined.