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2007 DIGILAW 299 (JK)

Suman Sharma v. State Of J. &K.

2007-12-31

NIRMAL SINGH

body2007
1. As the nature of controversy involved in these petitions is same, these shall stand disposed of vide this common order. 2. The facts in brief are as under: The State of Jammu and Kashmir vide Government Order No. 351 H.E of 1991 dated 30th of Aug91, framed a policy regarding engagement of Lecturers in Higher Education as a temporary arrangement for smooth conduct of academic activity of various colleges in the State. This arrangement of temporary lecturers was made against the migrant vacancies which fell vacant in the valley due to militancy. The initial period of engagement as per the said Government order was for a period of sixty days and order for the second spell of academic year could be issued on the expiry of first spell till 30th of Dec91, subject to the satisfactory work performance/conduct of the temporary appointee. A candidate engaged against such an arrangement was not having any claim for permanent adjustment in the Department on account of the said temporary arrangement. The temporary arrangement of candidates, as per the said order, was to terminate automatically on the stipulated date and it was mentioned in the order that no relieving order shall be issued to such a candidate. 3. The candidates who came to be engaged as such in pursuance to the aforementioned Government Order, however, continued to serve as Lecturers in Higher Education as their term was extended from time to time. As the said candidates were not being regularized against the posts they were working/allowed to continue, a number of writ petitions came to be filed in Srinagar wing of this court which came to be disposed of by a Full Bench of this Court vide judgment dated 28th of June01 passed in SWP No. 1309/98 and connected petitions. When the aforesaid writ petitions were taken up for disposal by the Full bench, the then learned Advocate General gave a concession that the writ petitioners would be considered for regularization of their services against migrant and other vacancies as and when they become available. When the aforesaid writ petitions were taken up for disposal by the Full bench, the then learned Advocate General gave a concession that the writ petitioners would be considered for regularization of their services against migrant and other vacancies as and when they become available. It was on the basis of the said concession that the Full Bench passed following directions: - (i) The State Government shall allow all the petitioners appointed against migrant vacancies to continue till an appropriate scheme for their regularization is formulated, or till the concerned migrant employees return to their duties in Kashmir valley, whichever happens earlier: (ii) In the event of any of the migrant vacancy post becoming a clear vacancy post on any count, or any of such post having already become a clear vacancy post, those petitioners, who are already working on those migrant vacancy posts, shall be considered for regularization on such posts in accordance with law. (iii) In the event any of the petitioners is required to give up the job due to the return of the migrant to the valley or for any other reason (except in disciplinary proceedings), the order of his ouster shall not he given effect to for a period of one month to enable the petitioner concerned to avail of such remedy as may he available to him under the law including approaching this Court..... 4. In pursuance to the aforesaid directions passed by the Full Bench of this Court on the basis of the concession given by the learned Advocate General that the writ petitioners before the Full Bench, some of whom are respondents in the writ petitions in hand, came to be regularized against the migrant vacancies after their cases were scrutinized by a Committee constituted for the purposes consisting of Financial Commissioner, Finance Department, Concerned Administrative Secretary, a representative from the General Administration Department and Director Codes, Finance Department. 5. Keeping in view the policy of the Government aforementioned and in order to see that the students studying in various colleges do not suffer, various temporary engagements of Lecturers in Higher Education came to be made in this part of the State also though not against the migrant vacancies but against the vacancies which became available with the State otherwise. It is against these vacancies, the petitioners herein came to be engaged as Lecturers on temporary basis. 6. It is against these vacancies, the petitioners herein came to be engaged as Lecturers on temporary basis. 6. The grievance of the petitioners is that post of Lecturer is a State Cadre post, and therefore, the private respondents who came to be engaged in the valley against migrant vacancies and other vacancies, which became available within the State, on temporary basis without following the due process of law, could not have been regularized against these vacancies on the basis of concession given by the then learned Advocate General before the Full Bench of this Court in Srinagar. A direction is thus sought to the official respondents to accord similar treatment to the petitioners also who are similarly situated with the private respondents whose services have been regularized against the migrant vacancies in Srinagar valley or in the alternative to quash the services of said private respondents. It is submitted that the State authorities cannot adopt a discriminatory approach so far as the petitioners herein are concerned. 7. Notices were issued to respondents. Private respondents have not chosen to appear. 8. Objections have been filed by official respondents stating therein that due to turmoil in the valley, the people belonging to minority community migrated and there was an administrative chaos. In Order to overcome this situation and keeping in view the interest of students studying in different colleges in the valley, the private respondents came to be engaged as Lecturers on temporary basis and later on in pursuance to the judgment passed by the Full Bench, referred to above, the services of private respondents came to be regularized against migrant and other vacancies which became available. It is stated that the petitioners being engaged on contractual basis, thus, cannot claim regularization against the posts of Lecturers. 9. Heard learned counsel for the parties. 10. Petitions admitted. 11. It is stated that the petitioners being engaged on contractual basis, thus, cannot claim regularization against the posts of Lecturers. 9. Heard learned counsel for the parties. 10. Petitions admitted. 11. The questions which are required to be considered in these petitions are:- I) Whether an engagement of a candidate in a service made on contract basis/ temporary basis could result in regularization of his/her services; II) Whether a post under the State could be filled up without adopting a proper procedure as prescribed under the law, this is more so when the post belongs to State Cadre; and III) whether the State and its functionaries can adopt a discriminatory method and fill up the posts under the State as a unit by pick and choose policy.- 12. These issues came up for consideration before me in number of other writ petitions bearing SWPs Nos. 52/07 and other connected matters titled Jiwan Lal and others v. State of J&K and Ors, decided on 10th of Dec07. Somewhat similar nature of controversy was involved in the aforesaid writ petitions also with only one exception that the engagements in those cases were made against the post of Lecturers in Higher Secondary Schools on contract/ temporary basis, whereas, in the present case, the engagements have been made to the post of Lecturers in Higher Education. What was observed in the aforesaid cases is being reproduced below: - 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. 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. 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 Ahmadabad Education Society v. Gilber B.Shah and others, AIR 2004 SC 1167. In the said case, the employees of Ahmadabad 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 mailer 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. The Apex Court ultimately observed that the service of the respondents who were appointed under u contract would be governed by the terms of the said contract. 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. The Apex Court ultimately observed that the service of the respondents who were appointed under u contract would be governed by the terms of the said contract. 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 he directed to be regularized against the posts held by them on contract basis under the said contract. 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. 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. 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 thin regard has to be accepted. The methodology adopted by the respondent State in granting relief to the candidate!: in Srinagar part of the Slate 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 Article 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 he 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. 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 suet a policy in selecting the candidates for State Cadre posts, then it would be it violation of Articles 14 and 16 of the Constitution. 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. 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. 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. 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. I am of the opinion that the aforesaid submission of the learned counsel for the petitioners cannot he 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..... " 13. In the present case also, as indicated above, the petitioners have been engaged on contract basis/temporary basis and this has been done without following any procedure. The posts against which they have been engaged is a State Cadre post and the same cannot be directed to be filled up in the manner as done by the respondent State nor any direction to the effect can be given that the services of the petitioners be regularized against the said posts. The posts against which they have been engaged is a State Cadre post and the same cannot be directed to be filled up in the manner as done by the respondent State nor any direction to the effect can be given that the services of the petitioners be regularized against the said posts. The submission of the learned counsel for the petitioners that when similarly situated persons have been regularized in the valley, then similar relief may be granted to the petitioners also who are belonging to this part of the State, can also not be accepted as observed in the aforementioned writ petitions. 14. At this stage, an important aspect to which my attention is drawn by the learned counsel for the petitioners is that the petitioners who even though have been working on contract basis are providing the same service as is being provided by the regular Lecturers but despite that the petitioners are being paid monthly remuneration of Rs.8000/- which is on a much lower side as compared to the salary which is being earned by a regular Lecturer. It is submitted that, no doubt, the Lecturers who have been appointed on permanent basis are entitled to the salary as per the regular scale of pay attached to the said post including other service benefits to which the petitioners can have no claim, even then, keeping in view the services rendered by the petitioners, there should be some parity so far as monthly remuneration/ salary is concerned. In this regard reliance is placed on a Division Bench judgment dt. 22nd of Nov97, of this court passed in LPA Nos. 105 and 115/07, titled State of J&K and ors v. Afshan Majid and others. 15. The above submission of the learned counsel for the petitioners, to my mind, is justified. No doubt, the petitioners have been engaged on contract/ temporary basis and are not entitled to the benefits of the service as are available to a regular employee regarding payment of salary, increments, leave etc. but as the services rendered by the contract Lecturers are somewhat similar to those rendered by the regular Lecturers, therefore, I am of the opinion that the monthly remuneration of contract Lecturers needs some enhancement. 16. At this stage, it would be apt to notice what was observed by the Division Bench of this court in the aforementioned case: - ... 16. At this stage, it would be apt to notice what was observed by the Division Bench of this court in the aforementioned case: - ... It is true that the scale of Lecturer was fixed at Rs.8000-275-13500 but later on 50% of the basic pay was merged with the pay scale and, as a result, the lowest grade would now be Rs. 12,000.00. Hence, on the Governments own reasoning the contract Lecturers should be paid a monthly salary of not less than Rs. 12,000.00 It is accordingly directed that the contract Lecturers must be paid salary (a), not less than Rs. 12,000.00 per month and for full year. The contract Lecturers would also be entitled to increments on the basis of past experience @ Rs. 275.00 per year. For example, a candidate engaged for the next session who had previous experience of past four years would gel a salary for the whole year at a rate not less them Rs. 13,100.00 per month. While taking steps to fill up the vacancies on a regular basis, as per the direction of the Writ court (vide the first part of the direction at serial no. `a) the State Government may consider to give relaxation of age to contract Lecturers for the number of years they actually worked on contract basis... 17. Admittedly, the learned counsel for the respondent- State has not pleaded that the aforementioned directions given by the Division Bench have been challenged or set aside. Therefore, these directions have attained finality. 18. For the reasons mentioned above and in view of the aforequoted observations made by the Division Bench of this court in the cases referred to above, these petitions are disposed of with the following directions: - I/ That the petitioner are not entitled to regularization of their services against the posts they have been engaged on contract/ temporary basis as the said engagement has been done without following any procedure as provided for filing up the post belonging to State-Cadre; II/ That the petitioners shall be allowed to continue till the posts are filled up by a regular selection process. The State respondent, however, shall be free to continue this engagement of the petitioners only if there is requirement to engage them keeping in view the interest of students who are studying in particular colleges; III/ The petitioners would be entitled to remuneration of Rs. The State respondent, however, shall be free to continue this engagement of the petitioners only if there is requirement to engage them keeping in view the interest of students who are studying in particular colleges; III/ The petitioners would be entitled to remuneration of Rs. 12000/- per month for full year even though they are engaged on session to session basis and in case, the engagement of the petitioners is extended beyond one session, then at the time of their engagement to next academic session, they will be entitled to increment also as attached to the regular scale of Lecturer in Higher Education; IV/ The services of private respondents who were initially engaged on contract/ temporary basis and later on regularized against the migrant or other vacancies which became available, shall also be treated on contract basis and the benefit of regularization of their services which has already been done shall be deemed to have been withdrawn. This would, however, be done by issuing a prior notice to such private respondents within a period of fifteen days from the date of receipt of a copy of this order by the respondent State; V/ The respondent State may take steps for initiating a regular selection process for filling up the posts of Lecturers in Higher Education on permanent basis and in case, any such process is initiated, then the petitioners along with the private respondents who have become overage, shall be allowed to participate in the said selection process by relaxing their age as a one time exception. This is, however, subject to the condition that such like petitioners/ private respondents were eligible at the time of their initial engagement on contract basis so far as the age criteria is concerned. VI/ The respondent State shall also release unpaid remuneration, if any, in favour of the petitioners for the period they have actually worked. 19. Disposed of accordingly along with connected CMPS, if any.