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2008 DIGILAW 240 (JK)

Hasina Akhter v. State Of J. &K.

2008-06-05

K.S.RADHAKRISHNAN, MANSOOR AHMAD MIR

body2008
Per Mansoor Ahmad Mir, J 1. This Letters Patent Appeal is directed against the judgment and order dated 13-8-2007 of the learned Single Judge, dismissing the writ petition of the appellant. 2. Learned counsel for the appellant argued that the petitioner has worked for a pretty long time i.e. at least for 16 years till the passing of the impugned order, as such, she was entitled to regularization. In support of his submissions, he placed reliance on the judgment of a Division Bench of this Court reported as Suheela Aziz Vs. State of J&K & ors, 2003 (1) SLJ 101. His further submission is that the writ court has fallen in error in dismissing the writ petition. 3. Admittedly, the appellant came to be engaged vide order dated 1-5-1991 against the leave arrangement of respondent no. 5, for a period of 89 days, which was extended subsequently vide order dated 29-6-1991 with one days break after every spell of 89 days. Feeling aggrieved, the petitioner questioned one days break by the medium of SWP No. 108/1992. She was allowed to continue till the actual incumbent resumes his duties in terms of the interim direction dated 7-5-1992. 4. Respondent no. 5 after availing the leave, joined back his services and the respondent no. 2 allowed him to resume his duties vide order No. 1188-DSEK of 2002 dated 11-4-2002. Petitioner questioned the said order firstly by the medium of a suit before Munsiff Tangmarg, who by virtue of an interim order commanded Zonal Education Officer, Kunzar to allow the petitioner to continue and not to allow respondent no. 5 to resume his duties and by the medium of writ petition bearing SWP No. 701/2002. Respondent no. 5 also filed SWP No. 639/2002. 5. The core question which calls for determination is whether a person who is working against the leave arrangement can approach the court for seeking regularization? The answer is in negative for the following reasons:- 6. The post of teacher is to be filled by direct recruitment. It cannot be filed by any other mode or method. Appointment, if any, made other than the one as provided by the Recruitment Rules is de hors the rules. The answer is in negative for the following reasons:- 6. The post of teacher is to be filled by direct recruitment. It cannot be filed by any other mode or method. Appointment, if any, made other than the one as provided by the Recruitment Rules is de hors the rules. The continuation of a person on the post in terms of court orders or working against the leave arrangement against the said post or by any other method will not create any right or interest in the appellant. A constitutional bench of the Supreme Court in a case Secretary, State of Karnataka & ors. Vs. Uma devi & ors., 2006 AIR SCW 1991 has held that if any appointment is made de hors the rules, the appointee cannot seek regularization. It is apt to reproduce relevant portion of the judgment, so far it is relevant for the present case is reproduced hereunder.- "While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain - not at arms length - since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the page 1946 constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, enumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not just to discontinue him even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touch stone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution." 7. The apex court in cases State of U.P Vs. Neeraj Awansmi & ors, 2006 AIR SCC 123, National Fertilizers Ltd. Vs. Somvir Singh, 2006 AIR SCW 2972, and Accounts Officer (A&I) APSRTC Vs. K.V. Ramana, 2007 AIR SCW 1185 and M/S Suresh Chandra Khandelwal Vs. The apex court in cases State of U.P Vs. Neeraj Awansmi & ors, 2006 AIR SCC 123, National Fertilizers Ltd. Vs. Somvir Singh, 2006 AIR SCW 2972, and Accounts Officer (A&I) APSRTC Vs. K.V. Ramana, 2007 AIR SCW 1185 and M/S Suresh Chandra Khandelwal Vs. State of M.P. & ors, 2006 AIR SCW 6069 has held that regularization of service cannot be mode of appointment and any appointment made de hors the rules cannot be regularized. 8. This court also in case Shaheena Firdous Vs. State and others, 2007 (II) SLJ 618 held that any appointment made in violation of the rules, does not create any right and interest in favour of the appointment. The said judgment was also upheld by the Letters Patent Bench vide judgment and order dated 16-8-2007 passed in LPA No. 138/2007 titled Shaheena Firdous Vs. State of J&K & ors. This court in yet another case titled Mohammad Maqbool Wagay Vs. State of J&K & ors., 2007 (3) JKJ HC-167 : 2007(1) SLJ 351, has held that any arrangement which is de hors rules cannot confer any right in favour of promote to hold such post. 9. The argument that the appellant was in position right from 1991 till passing of the impugned judgment and that created an interest in her favour is devoid of any force simply on the ground that the appellant came to be appointed against leave arrangement and continued in said arrangement on the basis of court orders. Continuing in any arrangement under interim court orders does not improve the claim to regularization. I am fortified in my view by the judgment of the apex court in case State of U.P. Vs. Raj Karan Singh, (1998) 8 Supreme Court Cases 529. It is apt to reproduce the relevant portion of the judgment hereunder:- "......Besides, merely because a person continues under the interim orders of the Court, such continuance on the post cannot and, in this case, does not confer on him any right for continuance, it does not enhance his case for regularization. It is only an interim arrangement pending decision by the Court and cannot disturb the position in law or equities, as on the date of the petition." 10. Same view has been taken by this court in case titled Shaheena Firdous Vs. State and others, 2007 (II) SLJ 618 and upheld by the Division Bench (supra). It is only an interim arrangement pending decision by the Court and cannot disturb the position in law or equities, as on the date of the petition." 10. Same view has been taken by this court in case titled Shaheena Firdous Vs. State and others, 2007 (II) SLJ 618 and upheld by the Division Bench (supra). Letters Patent Bench of this court also in case LPA No. 124/2005 titled Wali Mohammad Rather Vs. State of J&K, decided on 5-8-2005 and Daya Krishan and ors. Vs. State of J&K & ors. reported in 2000 SLJ (2) 365, also laid down the same principle. 11. The appellant had also prayed for terminating the lien of the respondent no. 5 in terms of the J&K Civil Service Regulations, for short CSR. Petitioner has no right to seek such a relief for the simple reason that it is the matter between the official respondents and the respondent no. 5. Article 37-A to 37-J of the CSR deal with "lien on appointment". It is for the employer how to suspend the lien of an employee and in which circumstances. If the lien of a Government servant on a particular post is suspended under Article 37-A (a), the post may be filled up substantively, but the arrangement shall be reversed, the moment suspended lien revives. It is apt to reproduce Article 37-E of the CSR hereunder: "37.E. If a Government servants lien on a posit is suspended under Article 37-C (a), the post may be filled substantively and the Government servant appointed to hold it substantively shall acquire a lien on it; provided that the arrangement shall be reversed as soon as the suspended lien revives. Note. l.- When a post is filled substantively under the above rule, the appointment will be termed a provisional appointment. The Government servant appointed will hold a provisional lien on the post and that lien may be suspended under Article 37-C." 12. A plain reading of the aforesaid provision of law makes it abundantly clear that even if a post is to be filled up substantively during suspension of lien, that arrangement has to go if the suspended lien is revived. In the instant case, the appellant was never appointed substantively. She came to be engaged against a leave arrangement and was working against the leave vacancy under the interim court orders. In the instant case, the appellant was never appointed substantively. She came to be engaged against a leave arrangement and was working against the leave vacancy under the interim court orders. Thus she has no right to ask for regularization of her services and termination of lien of respondent no. 5. She has no right also to question the order dated 11-4-2002 passed by respondent no. 2. The judgment reported as Suheela Aziz Vs. State of J&K & ors, 2003 (1) SLJ 101, relied upon by the petitioners counsel is not applicable to the instant case. In that case, the court directed that the case of petitioner be considered in the light of the rules governing regularization vis-a-vis adhoc appointees. It cannot be disputed that ad hoc appointment can be made against a vacancy of a person who proceeds on long leave, otherwise the appointment against the leave vacancy could be made co-terminus with the expiry of the leave. In the case at hand, engagement had to come to an end after the expiry of leave period in terms of the order of engagement read with the interim directions of the court. 13. The apex court in the recent judgment supra, held that any appointment made de hors the rules cannot create any right and interest in that employee to seek regularization. 14. A Division Bench of this court in cases titled Mumtaza Akhter Vs. State & others reported in 2001 SLJ (1) 22 and Daya Krishan & ors. Vs. State of J&K & ors reported as 2000 SLJ 365, have held that adhoc appointment or any other appointment made de hors the rules cannot regularization. Keeping in view the ratio laid down in the apex court judgments read with judgment of this court supra, the judgment reported in 2003 SLJ (l) 101 is not applicable to the instant case in the given circumstances. 15. Having glance over the above discussions, we find no error in the impugned judgment which calls for interference. Accordingly the appeal is dismissed. However, there shall be no order as to costs.