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2005 DIGILAW 358 (JK)

Farooq Ahmed v. State

2005-12-13

R.C.GANDHI

body2005
(Oral) 1. Petitioners by means of this petition seek to quash Government Order No. 169-PW of 2003 dated 24.9.2003, which is the appointment order of respondents 8 to 24 and also to quash the selection of said respondents made by respondent No.4, Deputy Commissioner, Doda. 2. The General Administration Department framed a policy for appointment on contractual basis against certain posts. The policy was issued under communication dated 30.7.2003 and conveyed to all Deputy Commissioners, who were designated as Chairman of the Selection Committee. At the time of issuance of the policy, certain vacancies, to be filled up on contractual basis by selection to be conducted by respondent No.4 in District Doda, were also notified. He issued advertisement notice on 4.8.2003, inviting applications from the desirous candidates for contractual appointment against various categories of posts, including ten posts of Junior Engineer(Civil) PWD and 9 posts of Junior Engineers (REW). 3. The petitioners applied pursuant to the said advertisement notice. They were considered along with other candidates. Respondents 8 to 24 were selected whereas the petitioners, having not made the grade, could not be selected and appointed. The selection was referred by the Deputy Commissioner, Doda, to the government in terms of the policy. Respondents 4 to 28 were appointed vide impugned order No. 169-PW of 2003 dated 24.9.2003. 4. The selection and appointment of the private respondents has been challenged on various grounds, including that some of the respondents selected did not even appear before the Selection Committee. There are certain allegations against the Selection Committee also. 5. Respondents in their reply have stated that private respondents have been selected by taking into consideration their merit by the Selection Committee. The selection does not suffer from any vice or illegality and is in accordance with the policy of the Government, contained in communication dated 30.7.2003. 6. Heard learned counsel for the parties and perused the record. On perusal of the pleadings, court finds that there is no need at this stage to go into the allegations, as the petition can be disposed of on legal grounds. 7. The advertisement notice contains that policy has been framed by the General Administration Department vide communication dated 30.7.2003 and posts also identified. The advertisement notice was for selection of candidates on contractual basis. 7. The advertisement notice contains that policy has been framed by the General Administration Department vide communication dated 30.7.2003 and posts also identified. The advertisement notice was for selection of candidates on contractual basis. Para 4 (1) of the advertisement notice reads as under:- 4.(i) The contractual appointments shall be for a period of one year or till regular selection is made in accordance with the rules of recruitment governing the prospective posts whichever is earlier.� 8. Official respondents, accepting the recommendations of the Selection Committee, issued the order of appointment vide impugned Government Order dated 24.9.2003. The term of appointment contained in the appointment order is reproduced for facility of reference as under:- As recommended by District Selection Committee, Doda, sanction is accorded to the appointment of candidates shown in annexure to this order as Junior Engineer, Civil/Mechanical on contract basis for a period of one year or till regular selection is made in accordance with the prescribed rules of recruitment which ever is earlier, subject to the following terms and conditions: i. The appointees shall not be entitled to any preferential claim for regular appointment under normal process of selection. ii. The service of an appointee shall be terminable before the expiry of the contractual period within one months notice from either side or on payment of one month™s salary in lieu of notice by the appointing authority. iii. The appointees shall be paid a consolidated monthly salary equivalent to the minimum of the pay scale of the post of Junior Engineer viz. Rs. 4500-125-7000 provided that the consolidated salary of a Degree holder Junior Engineer will be equivalent to the basic pay of the post of Junior Engineer plus eight increments. iv. The appointees shall not be entitled to any other allowance or monetary benefits, whatsoever. v. The appointees shall have to work at the places and against the post to which they have been appointed and shall not be eligible for transfer from the place of post. vi. The appointees shall execute an agreement with the Government in terms of Rule 4(3) of Contractual Appointment Rule, 2003. vii. The appointees in respect of discipline and conduct shall be governed by rules regulations and orders in vogue in the State Civil Services in general.� 9. vi. The appointees shall execute an agreement with the Government in terms of Rule 4(3) of Contractual Appointment Rule, 2003. vii. The appointees in respect of discipline and conduct shall be governed by rules regulations and orders in vogue in the State Civil Services in general.� 9. The appointment of respondents 4 to 28 ( except respondent No. 14, who has been deleted from the array of respondents), have been made by the official respondents in terms of advertisement notice for a period of one year or till regular selection is made in accordance with prescribed recruitment rules, which ever is earlier. The appointment is for a specific period, amplified by, which ever is earlier�. This indicates that respondents have to fill up the posts by regular appointment within a period of one year and with this purpose, the appointments have been made for a period of one year. There is nothing in the rules to suggest that in case regular appointment could not be made within one year, what will happen to the contractual appointments. The stipulation, which ever earlier� amplifies that appointments are made for a period of one year or till selection is made, which ever is earlier�, which means that appointments will be for a period of one year and not beyond that. 10. In similar situation where the terms of appointment were the same, a Division Bench of this Court in case titled Mufti Imtiaz Vs. State of J&K and ors, reported in 2003 (1) SLJ, 203, observed as under:- 5. Mr. Haqani, learned counsel for the appellant, reiterating the grounds set out in the memorandum of the appeal, has submitted that the appointment of the appellant could not be termed as being for one year only but was required to be continued till selection is made as stipulated in the appointment order. It is not in dispute that the appellant has been appointed for a period of one year on consolidated salary of Rs. 5000/- or till such time the post is filled up under rules, whichever is earlier. The appointment of the appellant is not governed under Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as the CCA Rules�) which provides for filling up of posts on adhoc basis for a period of three months extendable upto nine months. The appointment of the appellant is not governed under Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (hereinafter referred to as the CCA Rules�) which provides for filling up of posts on adhoc basis for a period of three months extendable upto nine months. The appellant has been appointed for a period of one year, therefore, it cannot be said that the appellant has been appointed on adhoc basis in exercise of the power under Rule 14 of the CCA Rules. The appointment of the appellant is contractual and has elapsed by efflux of time. The terms of the appointment have been accepted by the appellant. The stipulation contained in the appointment order that the appointment is for one year or till such time the post is filled up under rules, which ever is earlier� has to be given a harmonious construction, which means that in case the post is filled up before the expiry of the period of one year the appointment of the appellant will come to an end on the happening of selection against the post. Therefore, the argument of the learned counsel for the appellant that the appointment of the appellant was to continue till the post is filled up by selection under rules has no substance. The stipulation ˜whichever is earlier™ postulates that in case the appointment on the post is made on selection within one year the appellant would have no right to continue till the completion of one year. The expression ˜or till such time™ cannot be said to mean that the appointment will be treated as extended beyond the period of one year as the appointment order has not been couched in such a language. The stipulation has to be read in conjunction. The words ˜whichever is earlier™ places rider of reducing and curtailing the period of appointment of the appointee, if the post is filled up under rules even during the currency of the period of appointment mentioned in the order. Filling up of the post under rules further does not mean only by selection of a suitable candidate, which may be filled up even by transfer.� 11. The appointments were made on 24.9.2003 and period of one year has already elapsed in terms of the appointment order. The appointments of the appointees have to be governed by the conditions of the appointment order. The appointments were made on 24.9.2003 and period of one year has already elapsed in terms of the appointment order. The appointments of the appointees have to be governed by the conditions of the appointment order. These appointments, after one year, seize to operate as being for specific period, and terminate by efflux of time, as held by Supreme Court in case titled Director Institute of Management Development, U.P vs. Smt. Pushpa Srivastava, reported in AIR 1992 SC, 2070, wherein it has been observed as under:- Where the appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post.� 12. It is brought to the notice of the court by learned counsel for the petitioners that the appointments of the respondents 4 to 28 have been extended in terms of Government Order No. 352-GAD of 2004 dated 30.09.2004. Perusal of the said order reveals that extension in the contractual appointments has been sanctioned to the appointments made under the Jammu and Kashmir (Contractual Appointment) Rules, 2003. These rules were promulgated on 5th August, 2003 whereas the advertisement for the posts held by private respondents was issued on 4th August, 2003, i.e. when the aforesaid rules were not in existence. These rules have no application to these posts being outside the ambit of the rules notified on 5.8.2003. Once the rules are framed the government has to act according to the rules. The rules also do not contemplate vesting any power with the State-respondent to grant extension to the contractual appointment. If any order is passed beyond the scope of the rules, it is to be termed as illegal and does not vest or create any right. 13. For the aforesaid reasons, writ petition is allowed holding that the appointments of private respondents have come to an end by efflux of time i.e. after a period of one year and shall seize to operate.