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2007 DIGILAW 270 (JK)

Jiwan Lal v. State Of J. &K.

2007-12-10

NIRMAL SINGH

body2007
1. As the issue involved in these petitions is same, therefore, these shall stand disposed of vide this common order. 2. The facts are taken from SWP No. 52/07, which may be noticed as under:- Respondent-State vide Government Order No. 816-Edu. Of 1998 dated 24th of April98, framed a policy regarding recruitment of temporary Lecturers in Higher Secondary Schools on Session basis. The qualification prescribed was Post-Graduation in the subject concerned. The engagement was initially to be made for a period of two months which could be extended depending upon the requirement upto the maximum of one session. This selection of Lecturers was to be made from within the district and in case of non availability of a candidate in a particular subject, a candidate from the adjacent district could be considered for engagement. The candidate appointed on such an arrangement was entitled to monthly remuneration of Rs. 3500/-. The appointment, however, was purely temporary and the candidate opting for such an appointment had to furnish an undertaking that he/she will not claim any appointment on permanent basis against the said post and the said appointment is not to be treated as any commitment on behalf of the State Government. This is apparent from condition No.(iv) of the aforesaid Government Order. For facility of reference, this condition is reproduced below:- "iv. The appointment will be purely temporary and candidates will be asked to give an undertaking that he/she will not ask for any appointment on a permanent basis and there will be no commitment of the State Government in this behalf." 3. In terms of the aforesaid policy, the academic engagement made on temporary basis was to cease automatically and the posts, if any, available under such arrangements were to be filled in by the Public Service Commission as a direct recruitment. 4. Thereafter vide Government Order No. 1345-Edu of 1998 dt. 16th of July98, the earlier Government Order No.816-Edu of 1998 was partially modified and the Chief Education Officers of the respective areas were directed to identify the Higher Secondary Schools where such like vacancies were available. The other conditions, however, were not changed. Again, vide Government Order No.553-Edu of 2000 dt. 7th of June2000, partial modification was done and the remuneration which was being paid to such temporary Lecturers was enhanced from Rs. 3500 to Rs. The other conditions, however, were not changed. Again, vide Government Order No.553-Edu of 2000 dt. 7th of June2000, partial modification was done and the remuneration which was being paid to such temporary Lecturers was enhanced from Rs. 3500 to Rs. 4500 per month whereas in the difficult areas i.e. Leh and Kargil, the remuneration was fixed at Rs.6000 per month. 5. The Government of Jammu and Kashmir through Director, Project Appraisal, Planning and Development Department, thereafter referred the matter to the Advisor (LEM), Planning Commission, New Delhi, on the basis of the recommendations of the Core Group on Employment in the Education, Health Vocational Training Services for creating employment and self employment opportunities in the State of Jammu and Kashmir for the next two years and in pursuance to this, vide Government Order No. 1301-Edu of 2003 dt. 31st of July03, the Government upgraded 80 Middle Schools to the Level of High Schools and 30 High Schools to the level of Higher Secondary Schools and some additional posts were created in different categories. In terms of the said order, the appointment of temporary Lecturers was to be made on consolidated amount of Rs.7000 per month. 6. In pursuance to the aforesaid Scheme of the Government, the petitioners herein came to be appointed/engaged as temporary Lecturers on contract basis on monthly remuneration of Rs.7000 per month in different institutions. The grievance of the petitioners is that even though their term of engagement has been extended by the respondent- authorities from time to time and they have been performing their duties as such to the satisfaction of the authorities concerned, yet their services are not being regularized. It is stated that in terms of condition No.iv of Government Order No.1301-Edu of 2003 dt. 31st of July03, referred to above, the petitioners are entitled to be regularized against the post of Lecturer after rendering three years of service on academic arrangement basis. 7. The further grievance of the petitioners is that in similar set of circumstances, a Full Bench of this Court at Srinagar while deciding SWP No. 1309/98 and other connected petitions, had issued directions on the basis of the concession given by the then learned Advocate General that the cases of the petitioners in the said writ petitions would be considered for regularization of their services against migrant and other vacancies as and when they become available. It is submitted that keeping in view the directions given by the Full Bench in the aforesaid cases on the basis of the concession accorded by the then learned Advocate General, the petitioners in the aforesaid petitions which came to be decided at Srinagar have been given the benefit of regularization whereas the same has been denied to the candidates who belong to Jammu region. It is stated that the post of Lecturer is a State Cadre post, and therefore, only the candidates belonging to the valley cannot be considered against the migrant and other vacancies, if any, available and the candidates who belong to this part of the State should also have been considered. It is thus submitted that a discriminatory approach has been adopted by the respondent authorities so far as the petitioners herein are concerned. 8. Through the medium of present writ petitions, the petitioners are seeking a direction to the respondent State to consider their cases for regularization of services against the post of Lecturers by according the same treatment as has been given to their counter-parts whose services have been regularized against the migrant and other vacancies which became available in Srinagar. It is stated that the petitioners otherwise are also entitled to be regularized against the said posts in terms of Condition No. (iv) prescribed in Government Order No. 1301-Edu of 2003 dt. 31st of July03. 9. Notices were issued to respondents. Only respondent State has filed objections whereas private respondents have not chosen to appear. 10. Respondent State in its objections have stated that the appointment/engagement of the petitioners as Lecturer was made on temporary basis in different districts on need basis so that the children studying in Higher Secondary Schools may not suffer. It is stated that the Government taking into consideration the urgent need of teachers/Lecturers, has appointed the petitioners on consolidated salary of Rs. 7000 per month on session to session basis. It is stated that in terms of the Scheme aforementioned, the petitioners do not have any right of seeking regularization against the said post as these posts are to be filled by direct recruitment by inviting applications from all eligible candidates and this process has to be completed by the Public Service Commission. It is stated that the petitioners are free to participate in the regular selection process if they are eligible under rules. It is stated that the petitioners are free to participate in the regular selection process if they are eligible under rules. It is thus stated that the petitioners cannot seek regularization against the posts which are to be filled in by direct recruitment. Petitions admitted. Taken on board for final disposal. 11. The question which is required to be considered in these petitions is as to whether a candidate who is engaged/appointed on a post on contract basis for a particular term on consolidated salary is entitled to seek regularization of his/her services that too, when there is a specific condition laid down in the Scheme that such a candidate will have no right of appointment on permanent basis against the temporary post held by him/her. 12. Before considering the above aspect of the matter, it would be apt to notice the relevant condition No. (iv) of Government Order No. 1301-Edu of 2003 dt. 31st of July03, on which much emphasis has been laid by the learned counsel for the petitioner. The said condition reads as under:- "(iv) Selection for the direct recruitment of the lecturers shall be made on consolidated amount of Rs. 7000 PM on academic arrangement basis with due consideration of merit and locally available deserving candidates at district levels for three years whereafter regularized." 13. Learned counsel for the petitioners submitted that in view of the aforesaid clause laid down in the order aforementioned, the petitioners joined the services as Lecturers and the same would be treated as a promise extended by the respondent authorities to the petitioners that their services would be regularized after rendering three years of service as such. 14. It be seen that the State Government vide Order dt. 1627-Edu of 2003 dated 27th of Oct03, modified Government Order No.1301-Edu of 2003 dt. 31st of July03 and the aforesaid condition laid down in the said order was deleted/modified as under:- "The candidates engaged against direct recruitment posts of Lecturers shall be paid remuneration of Rs. 7000/- per month." 15. The aforesaid modification/deletion made vide Government Order No.1627-Edu of 2003, came up for interpretation before this court in SWP No.1670/2004 and other connected petition which came to be disposed of vide judgment dt. 22nd of Nov04, with the following observations:- "Learned counsel for the petitioners Mrs Kour submits that Govt. 7000/- per month." 15. The aforesaid modification/deletion made vide Government Order No.1627-Edu of 2003, came up for interpretation before this court in SWP No.1670/2004 and other connected petition which came to be disposed of vide judgment dt. 22nd of Nov04, with the following observations:- "Learned counsel for the petitioners Mrs Kour submits that Govt. Order No.1627-Edu of 2003 dated 22.10.2003 is bad in law to the extent it deletes the provision made for regularization of the direct recruits in the original order No. 1301-Edu of 2003. According to learned counsel for the petitioners it was not competent for the Government to have deleted the condition of regularization after having extended the same to the candidates to be selected against the direct recruitment posts. I am not in agreement with learned counsel. Before making the selections and appointments under the original Government Order No. 1301-Edu of 2003 it was open to the Government to change the conditions of appointments to be made at any time....." 16. A perusal of the appointment orders of the petitioners placed on the record of the file in hand shows that the said appointment/engagement has been done on contractual basis @Rs.7000 per month for a period of two months for the session 2006-07 Winter Zone in different Government Higher Secondary Schools and this engagement is on the condition that the candidate should be within the age limit required under rules as on 1st of Jan06 and he/she shall have no claim or right for appointment on permanent basis and their engagement shall automatically stand terminated after the expiry of period of two months or till the post is filled up on regular basis which ever is earlier. During the period of the said engagement the candidate concerned has also to abide by the Government Service Conduct Rules and other conditions as laid down by the Department from time to time. Therefore, it can be said that the said appointments were intended to be a stop gap arrangement and not for a long term. Nor this is the intent of the policy or the Scheme to fill up large number of posts of Lecturers without proper selection at the State level because the said posts are State Cadre posts. These appointments as per the Scheme and the appointment orders seem to have been made keeping in view the emergent situation that the students may not suffer. These appointments as per the Scheme and the appointment orders seem to have been made keeping in view the emergent situation that the students may not suffer. More-over, these appointments have been made only on session to session basis initially for a period of two months and thereafter extended only if there is requirement to engage such like Lecturers in a particular school. Even otherwise, as noticed above, the posts against which the petitioners have been engaged/appointed are State Cadre posts. They have been appointed by temporary District Level Committees and not by the legally constituted Committee who is competent to make the selection of State Cadre posts. Even the merit of the petitioners has not been determined and as indicated above, they have only been appointed for a particular term under a contract keeping in view the requirement of the School concerned. Their services, as such, would be governed by the terms and conditions of that contract only as has been laid down by the Apex Court in the case of Ahmedabad Education Society v. Gilber B.Shah and others, AIR 2004 SC 1167. In the said case, the employees of Ahmedabad Education Society were appointed on contractual basis and their services were to be governed by general rules and regulations of the Society. In terms of the said rules of the Society, their retirement age was fixed at 60 years. Later on as per the Amendment Rules of 1978, the retirement age of the regular employees was fixed at 58 years. The Apex Court while dealing with the matter observed as under:- "Since this is the accepted position, Leave Rules are the applicable terms of service in case of the respondents teachers. As per the original terms and conditions of the contract they were appointed up a particular age; that is up to the age of 60. As a result, they could be considered as appointed for a definite period. Sub rule (3) of rule 34 of the Amended Rules exempted those persons who are appointed for a definite period from its ambit. .......More over the appellant is a private registered Society. In any case, the terms of contract will determine the terms of service of the employees. In this context, it is unnecessary for us to examine the other issues advanced before us." 17. .......More over the appellant is a private registered Society. In any case, the terms of contract will determine the terms of service of the employees. In this context, it is unnecessary for us to examine the other issues advanced before us." 17. The Apex Court ultimately observed that the service of the respondents who were appointed under a contract would be governed by the terms of the said contract. 18. In the present case also, the petitioners have been appointed on contract basis for a particular period, therefore, their services would also be governed by the terms of the said contract and they cannot be directed to be regularized against the posts held by them on contract basis under the said contract. 19. It be further seen that under Article 16 of the Constitution of India, there is an equality of opportunity for all citizens in the matters relating to employment/appointment to any office under the State. Therefore, while making appointment to a post under the State, the respondent authorities are bound to issue wide publicity so that every eligible candidate is able to apply against the said post. The other objective behind such a wide publicity is that the employer is able to get the best suitable candidate for a particular post which is to be filled. In the cases in hand, no doubt, the State Government had engaged/appointed the petitioners in pursuance to a Scheme which was widely circulated but the said engagement, as indicated above, is only for a particular period on contract basis, and therefore, the process of regular selection cannot be substituted by the same. In the present case, the petitioners have been engaged/appointed on district wise basis by an incompetent authority whereas the post to which they have been so appointed is a State Cadre post. Thus the petitioners, as indicated above, cannot be directed to be regularized against the said posts which have been occupied by them on contract basis only as an academic arrangement. This is because if such a direction is issued, this would lead to affecting the rights of other candidates who might have attained eligibility by now to compete for the said posts of Lecturers in a proper selection process to be conducted by the Competent authority taking the State as a unit. 20. This is because if such a direction is issued, this would lead to affecting the rights of other candidates who might have attained eligibility by now to compete for the said posts of Lecturers in a proper selection process to be conducted by the Competent authority taking the State as a unit. 20. The other contention of the learned counsel for the petitioners that similarly situated persons have been granted benefit in the valley and the respondent State cannot adopt a discriminatory approach so far as the candidates belonging to Jammu region is concerned, I would like to state that the writ petitions in hand may have been allowed by me on the basis of the aforementioned concession given by the then learned Advocate General before the Honble Full Bench at Srinagar if the selection of the petitioners would have been made initially by a legally constituted Committee who is competent to make the selections against State cadre posts but I am handicapped in doing so because the said selection, as indicated above, has been made by the district level Committees without adopting proper procedure. However, I am of the view that the concession accorded by the then Advocate General before the Full Bench of this Court at Srinagar in the aforementioned cases should not have been accorded, and therefore, the contention raised by the learned counsel for the petitioners in this regard has to be accepted. The methodology adopted by the respondent State in granting relief to the candidates in Srinagar part of the State without resorting to a proper selection process can be termed as a pick and choose policy and without any doubt is a deviation from the course of law. The authorities concerned under the State are expected to protect and preserve the rights of every citizen as has been guaranteed under Articles 14 and 16(1) of the Constitution of India and therefore, should not adopt a discriminatory approach. The authorities working under the State are the vehicles for the protection of a set of values which are integral part of our social and political philosophy. But when a discriminatory approach is being adopted by such a responsible authority of the State, then the whole system gets paralysed leading to resentment amongst residents of that State. The authorities working under the State are the vehicles for the protection of a set of values which are integral part of our social and political philosophy. But when a discriminatory approach is being adopted by such a responsible authority of the State, then the whole system gets paralysed leading to resentment amongst residents of that State. While performing the administrative functions, the authorities of the State are supposed to adopt some principles and values so that there is constitutional protection of equality of opportunity to all the citizens. The principle in such cases should be the same i.e. there should be no discrimination between one person and another if their position is the same as has been laid down in Chiranjit Lal v. Union of India, (1950) S.C.R. 869. 21. I am thus of the view that whenever the posts belonging to State cadre are to be filled, the State and its authorities should adopt the proper procedure so that all eligible candidates of the State as a unit are considered for appointment or regularization of their services, as the case may be and the vacancies falling vacant under State Cadre should not be filled up by pick and choose method considering the candidates belonging to a particular region of the State. If the State adopts such a policy in selecting the candidates for State Cadre posts, then it would be in violation of Articles 14 and 16 of the Constitution. 22. At the hearing, Mr AH Naik, learned Advocate General, made a statement that in Srinagar the candidates who were appointed/engaged initially in terms of the aforesaid Scheme were later on regularized against the migrant vacancies. He, however, stated that in case, the selection of said candidates who have been regularized in Srinagar, is held to be bad, the State will take the requisite steps for disengaging such candidates even though this was done on the basis of the concession accorded by the then Advocate General before the Full Bench. 23. He, however, stated that in case, the selection of said candidates who have been regularized in Srinagar, is held to be bad, the State will take the requisite steps for disengaging such candidates even though this was done on the basis of the concession accorded by the then Advocate General before the Full Bench. 23. In the present case, even if the argument raised by the learned Advocate General that the candidates in Srinagar were adjusted against the migrant vacancies is accepted, even then, such a selection would be bad because, as indicated above, the posts against which they have been appointed are State cadre posts and these could not have been filled by adjusting the candidates belonging to a particular part of the State, and therefore, the concession given by the then learned Advocate General before the Full Bench, in my view, was a wrong approach on the part of State authorities and can be termed as discriminatory. The State, in this regard, has to adopt appropriate measures. 24. Learned counsel for the petitioners at this stage submitted that when similarly situated candidates have been regularized against the aforesaid posts in Srinagar, then the petitioners who are also holding the said posts in Jammu region, though in temporary capacity on contract basis, may be directed to be regularized against these posts. 25. I am of the opinion that the aforesaid submission of the learned counsel for the petitioners cannot be accepted. If earlier some act has been committed by the State authorities which is not in accordance with the law, then the said authorities cannot be directed to act and adopt the same approach again as this would further lead to multiplicity of litigation and result in an un-ending process. 26. In view of the above discussion, these petitions are disposed of with the following directions:- I. That the posts against which the petitioners have been appointed/engaged on contract basis being State Cadre posts cannot be directed to be filled in by regularizing the services of the petitioners as they have been engaged/appointed as such by District Level Committees without adopting the proper procedure and their services would be deemed to have been governed by the terms of the said contract; II. That the petitioners shall be allowed to continue till regular selection is made. That the petitioners shall be allowed to continue till regular selection is made. This is, however, subject to the condition that there is a requirement to continue their engagement keeping in view the interest of students in particular schools where they have been so appointed. Petitioners would also be entitled to remuneration of Rs.7000/- per month for full year even though they are engaged on session to session basis; III. The respondent State may take steps for initiating a regular selection process in accordance with the law for filling up the aforesaid posts of Lecturers on permanent basis, and in case, any such process is initiated, then the petitioners who have become overage, shall be allowed to participate in the said selection process by relaxing their age as a one time exception. This shall, however, be subject to the condition that such like petitioners were eligible at the time of their initial engagement so far as age criteria is concerned; IV. That the services of the candidates who have been regularized against migrant vacancies or other vacancies which have fallen vacant later on in Srinagar, shall also be treated on contract basis and this would be done by issuing a prior notice to the said candidates by the respondent State within a period of fifteen days from the date of receipt of a copy of this order. Disposed of accordingly along with connected CMPs, if any.