Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 145 (JK)

Rajesh Kumar v. State

2009-04-02

SUNIL HALI

body2009
1. The petitioners procured their appointments as Class-IV employees on adhoc basis on 2-12-1991, 30-11-1991 and 6-1-1992. They continued to work till the regular selection is made. The process of selection was initiated by the respondents to fill up these posts substantively and in this respect an advertisement notice was issued by the respondents. In pursuant to the advertisement notice, the petitioners have also applied for the said posts. The result of the advertisement notice was that the petitioners were not selected and instead private respondents 5 to 7 found the place in the select list. The consequence of the selection was that the petitioners services were terminated. 2. Feeling aggrieved of their termination orders, petitioners filed writ petition in this Court praying that the selection was conducted clandestinely without calling petitioners for the interview. The petitioners took an alternative prayer that since their appointments were terminated on account of selection made by the respondents, they be regularized under SRO 64 of 1994. The Court gave a direction that petitioners be accordingly regularized by applying the guidelines passed in case titled Uttam Singh v. State of J&K. 3. Pursuant to the aforesaid direction of the Court, no steps were taken by the respondents, which impelled the petitioners to file a contempt petition in this regard. In the said contempt petition, the Court directed that the case of the petitioners be considered in light of the Cabinet decision taken in pursuant to the direction of the Court. 4. The case of the petitioners was considered and found that they were not eligible for being considered for regularization under SRO 64 of 1994 as they did not have seven years of service. This order came to be passed on 2-7-2002. It is under these circumstances, the present writ petition has been filed. 5. The case of the petitioners is that they were not called for interview by the Service Selection Board and appointments were made dehors the rules. The alternative prayer of the petitioners is that they may be regularized under SRO 64 of 1994. 6. The stand of the respondents is that the claim of the petitioners could not have been considered for regularization, as admittedly they did not have seven years service. Their services came to be terminated on account of selections made against their posts. The alternative prayer of the petitioners is that they may be regularized under SRO 64 of 1994. 6. The stand of the respondents is that the claim of the petitioners could not have been considered for regularization, as admittedly they did not have seven years service. Their services came to be terminated on account of selections made against their posts. It is further averred that their continuance on the said post was dependant upon the final selection made by the prescribed test. Having failed to get appointed, petitioners have no right to continue after 1994. 7. I have heard the learned counsel for the parties. 8. Apparently, petitioners did not have a case for regularization under SRO 64 of 1994. Even though an adhoc appointee who have continued for seven years, could also be regularized, provided he had completed seven years of service. Petitioners admittedly did not have seven years continue service in the department. Their termination was strictly in consonance with the nature of their appointment, which was to ensure till the selection is made. This prayer of the petitioners does not seem to be well founded. Coming to the second question that selections were made without conducting interview, it is not in dispute that after issuance of advertisement notice for making selection to Class-IV employees, no selection process has taken place. The appointments have been made on the basis of particulars in the shape of academic qualifications, which seems to be the only basis for making such selection. The stand of the respondents is that they have not conducted any interview, for which no legal reasons are available. It is also not disputed that no selection list was prepared and no select list was ever published. 9. The facts that emerges are: a) That the petitioners had applied for selection to Class-IV posts alongwith other candidates. b) That the petitioners were not called for interview while making the aforesaid selection. c) That the no merit list has been prepared by the respondents nor any selection list has been published. 10. Article 16 of the Constitution deals with the proposition that every person has a right to be considered for appointment. The word `consideration would mean according similar treatment to the persons who were seeking employment and a transparent process for making selection to the said posts. 10. Article 16 of the Constitution deals with the proposition that every person has a right to be considered for appointment. The word `consideration would mean according similar treatment to the persons who were seeking employment and a transparent process for making selection to the said posts. The respondents may choose any one of the methods for making such selection namely: a) Through competitive examination b) By interview c) Partly by written test or by interview 11. The idea of making selection is to ensure that every person is considered for appointment, if he is eligible and the selection has to be transparent and fair. Any selection made dehors rules, impinges upon fundamental right of the parties and cannot sustain in the eyes of the law. The respondents having invited applications, were required to make selection by any one of the methods indicated hereinabove. This has not been done. They have appointed people without publishing the merit list and the appointment orders have been kept secret and not disclosed to the public at large including the petitioners. How and under what manner the persons who were selected, were better placed in merit and those who have been ignored have not been disclosed. This in itself states that the whole process of selection was made by taking recourse of back door appointments. I, accordingly hold that the respondents 5 to 7 have not been appointed in accordance with law. 12. As to for what relief the petitioners are entitled to, is the other aspect of the matter. It would not be appropriate at this stage to cancel the appointments of the private respondents, in case the respondents absorb the petitioners as Class-IV employees. 13. I, accordingly direct that petitioners shall be appointed as Class-IV employees in the department against any vacancies which is available with the department as on today or in future vacancy. It is made clear that petitioners need not apply afresh. Let this process be completed by the respondents within four months from the date copy of this order is received by them. In case the respondents are unable to appoint the petitioners on account of non-availability of vacancies, in that event the selection of private respondents 5 to 7 shall stand quashed and the petitioners shall be adjusted against those posts. Writ petition disposed of alongwith connected CMP, if any.