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2009 DIGILAW 244 (JK)

Ab. Hamid Teli v. State

2009-05-18

J.P.SINGH

body2009
1. Petitioner was appointed as orderly on adhoc basis for a period of 89 days w.e.f. 01.06.1994 by Tehsildar Consolidation Pattan vide his order No. 34-36/CHP dated 01.06.1994. After expiry of the period of petitioners engagement, it was Shakeel Ahmad Dar, respondent No.5, who was appointed in his place, on adhoc basis, for a period of 89 days by the Tehsildar. 2. Tehsildar Pattan appears to have re-appointed the petitioner as orderly during the currency of the period of engagement of respondent no.5. 3. Finding the petitioners engagement unwarranted, the Financial Commissioner, Jammu and Kashmir Government, Srinagar directed the petitioners engagement to cease with immediate effect, in terms of his Order No. FC(NG) 453 of 1998 dated 26.6.1998. 4. The petitioner has approached this court through this writ petition seeking, quashing of the Financial Commissioners above mentioned order besides issuance of a command to the respondents to permit him to function as orderly. Respondent No.5 has justified Financial Commissioners impugned order saying that illegal order of the Tehsildar, curtailing the period of his engagement, has rightly been set aside by the Financial Commissioner. I have considered the submissions of learned counsel for the parties. 5. Temporary appointments in the Government Departments of the State against the posts borne on the cadre of the service, class or category are governed by Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956, (hereinafter called "the Rules") which for facility of reference is reproduced hereunder- "14. Temporary appointments: -- (1) Where it is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a vacancy in a post borne on the cadre of service, class or category and the making of an appointment to such vacancy in accordance with these rules would involve undue delay, excessive expenditure or administrative inconvenience, the appointing authority may appoint a person otherwise than in accordance with these rules temporarily with the prior approval of the Chief Minister in Co-ordination until a person is appointed in accordance with these rules but such temporary appointment shall in no case exceed three months on each occasion and not more than nine months in all. (2) A person appointed under sub-rule (1) shall be replaced as soon as possible by a member of the service or a candidate qualified and considered fit to hold the post under these rules. (3) A person appointed under sub-rule (1) shall not be regarded as a probationer in such service, class or category, or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category." 6. In terms of the above quoted Rule, the Appointing Authority may appoint a person otherwise than in accordance with the Rules, temporarily with the prior approval of the Chief Minister in co-ordination until a person was appointed in accordance with the rules. The Rule, however, provides a rider that such temporary appointments shall in no case exceed three months on each occasion and not more than nine months in all. 7. Any person appointed temporarily on adhoc basis, in terms of the Rule, is required to be replaced as soon as possible by a member of the service or a candidate qualified and considered fit to hold the post under the Recruitment Rules. 8. Perusal of Rule 14 thus indicates that an employer while exercising power under Rule 14 of the Rules, may fill immediately any vacancy in a post borne on the cadre of the service, class or category, when the filling of such vacancy involved undue delay, excessive expenditure or administrative inconvenience and the filling up of the vacancy was considered absolutely necessary in the public interest because of the existence of any emergency. 9. The power conferred on the employer under Rule 14 aforementioned may, however, be exercised provided all those entitled to seek consideration for such temporary engagement too had been allowed opportunity to seek consideration for such temporary engagements so as to satisfy the mandate of Article 16 of the Constitution of India which enjoins a Constitutional duty on the employer to provide equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. 10. Appointments made, though on temporary or adhoc basis, without providing opportunity to all eligible persons to seek consideration therefor, would thus be in violation of the provisions of Article 16 of the Constitution of India. 11. 10. Appointments made, though on temporary or adhoc basis, without providing opportunity to all eligible persons to seek consideration therefor, would thus be in violation of the provisions of Article 16 of the Constitution of India. 11. Perusal of the order of Tehsildar Pattan, which was annulled by the Financial Commissioner, indicates that none of the conditions prescribed for exercise of power under Rule 14 of the Rules, were satisfied when the temporary engagement of the petitioner came to be made. The Tehsildar, who was, even otherwise, not competent and authorized to engage the petitioner on adhoc basis, had not even sought the Chief Ministers permission before issuing the order for engagement of the petitioner on both the occasions. These orders were thus in violation of the provisions of Rule 14 of the Rules. 12. That apart, after the expiry of the period of his engagement, the petitioner could not be re-engaged and in any case beyond nine months, in that, the post against which he had been temporarily engaged, in terms of Rule 14(2), was required to be filled up by a member of the service or a candidate qualified and considered fit to hold the post. The petitioner has thus no enforceable right to seek his re-engagement. 13. Petitioners writ petition seeking direction to the respondents not to disturb his temporary engagement is thus misconceived, in that, petitioner has no right to seek perpetuation of his stay on a temporary post life whereof, in terms of Rule 14 of the Rules, cannot be more than nine months in any case. 14. In order to seek a command against the employer for his retention in service, an employee is required to demonstrate the existence of an enforceable right in him to remain in service. 15. Neither does the petitioner possess any such right in him to remain in service of the respondents nor are the respondents, under any law for the time being in force in the State, obliged to continue his adhoc engagement beyond the period prescribed in Rule 14 of the Rules. Petitioner, therefore, does not possess any right as such, which he may enforce by invoking the Extra Ordinary Writ Jurisdiction of the court. Found to be without merit, petitioners writ petition is, accordingly, dismissed. 16. Petitioner, therefore, does not possess any right as such, which he may enforce by invoking the Extra Ordinary Writ Jurisdiction of the court. Found to be without merit, petitioners writ petition is, accordingly, dismissed. 16. Before parting, it needs to be observed that the engagement of respondent No.5 who had been appointed on temporary basis, too does not satisfy the requirements of Rule 14 of the Rules. His engagement, if it still continues to operate, needs to be discontinued forthwith to follow the Constitutional mandate of providing opportunity to all eligible persons to compete for the engagement, temporary or otherwise. 17. The respondents shall, therefore, be well advised to advertise the post against which the petitioner and respondent No.5 had staked claim for engagement, for filling it in accordance with the Rules. 18. As the petitioner and respondent No.5 have been litigating in the court for the last 11 years, it would be equitable to provide that the State Government considers relaxation of the age bar in case they apply for the post and are found to have become over-aged by that time.