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2009 DIGILAW 343 (JK)

Feroz Ahmad v. State Of J. &K.

2009-07-17

MOHAMMAD YAQOOB MIR

body2009
1. Petitioner pursuant to order dated 30.11.1996, issued by respondent No.4 (District & Sessions Judge, Pulwama) has been appointed as Process Server in the pay scale of Rs.750-940 plus usual allowances temporarily till appointment of Process Servers is made by the High Court. Petitioner has joined on the same date. 2. Vide letter No.11572/SY dated 12.2.1997 Secretary to Honble Chief Justice (respondent No.3) has conveyed to the respondent No.4 that the orders including order dated 30.11.1996 have not been confirmed by the Honble Chief Justice, at the same time has been asked to explain why such appointments have been made when it was in his notice that such posts have been referred to Selection Committee. Consequent to receipt of this letter, petitioner has not been permitted to mark attendance means has been disengaged. Aggrieved thereof petitioner has filed the instant petition seeking quashment of the said letter and also issuance of mandamus so as to command respondent No.4 to allow the petitioner to continue on the post of Process Server and also to pay him the salary due to him from March, 1997 till date and be also paid future pay regularly. 3. The respondents in their counter affidavit have contended that arbitrary method had been resorted to for engagement of petitioner by respondent No.4, i.e. pick and choose method has been adopted which is flagrant violation of policy of recruitment of ministerial staff of the subordinate courts, therefore, no right has accrued to the petitioner. None of the rights of the petitioner is infringed; therefore, petition is not maintainable. It is further added that the petitioner after April, 1997 has not attended the duties nor had any occasion to attend the same, so had no right to mark his attendance. It is further added that neither selection was made by the respondent No.4 nor eligible candidates were given chance to compete, therefore, engagement of the petitioner was de horse the rules so does not create any right in favour of the petitioner, more so when the order of engagement was subject to the confirmation. When engagement is not in accordance with law, same does not create any right. 4. Learned counsel appearing for the petitioner projected that in terms of Section 30 of the Civil Courts Act (hereinafter referred to as "the Act") District Judge is the appointing authority vis-a-vis ministerial officers of the subordinate courts. When engagement is not in accordance with law, same does not create any right. 4. Learned counsel appearing for the petitioner projected that in terms of Section 30 of the Civil Courts Act (hereinafter referred to as "the Act") District Judge is the appointing authority vis-a-vis ministerial officers of the subordinate courts. There is no requirement of seeking confirmation of the appointment made. Therefore, the impugned letter where-under it has been conveyed that the action has not been confirmed is irrelevant and has no effect. Further added that in terms of sub-section 4 of Section 30 of "the Act" High Court is the controlling authority i.e. any order passed by District Judge under the said Section is subject to control of the High Court. The word `control as occurring in sub-section 4 supra has been considered by the Full Bench of this Court in judgment Gh. Qadir Sheikh V/S High Court of J&K reported in 2001 S.L.J 133. 5. It is further contended by learned counsel for the petitioner that in terms of Rule 4 of the J&K High Court Rules as framed in exercise of powers conferred by Section 30 of the Act, the control to be exercised by the High Court has to be exercised through Honble Chief Justice which control relate to the procedure to be followed for making the appointments. Respondent No.4 while making appointment has not violated any policy or circular, therefore, petitioner could not be prevented from marking attendance. Learned counsel while placing reliance on the aforesaid judgment has prayed for quashment of the impugned letter. 6. The order of appointment issued by respondent No.4 on the face of it is totally unwarranted and has been issued de hors the rules and the recruitment method. In the judgment reported in 2001 S.L.J 133 supra, Full Bench of this Court has set the controversy at rest to the effect that the power of appointment is conferred on the District Judge but any appointment made U/S 30 of "the Act" by the District Judge is subject to the control of the High Court exercised through Honble Chief Justice. It shall be relevant to quote para 22 of the judgment: "22. It shall be relevant to quote para 22 of the judgment: "22. We are accordingly of the view that the Chief Justice in pursuance of the powers conferred on him under rule 4 of the rules framed vide notification No.87 re-produced at page 10 of this judgment can exercise the powers which are vested in the High Court and in the exercise of this power of control he can exercise all those powers, which are noticed while taking note of the definition of the word `control. While exercising the control Honble Chief Justice has power to regulate mode and method of recruitment of ministerial officers. Answer to formulated Question No.III is reproduced hereunder: - "In the exercise of powers conferred on the Chief Justice under Section 30 of the Act, the Chief Justice can regulate the mode and method of recruitment of ministerial officer. This would include the power to constitute the Selection committees and issue orders/ instructions, dealing with criteria to be adopted." 7. The order of appointment dated 30.11.1996 issued in favour of the petitioner is temporary in its operation until regular appointment of Process Servers is made by the High Court. The order on the face of it is not covered by any rule. In terms of the letter impugned it is clear that the post had been referred to the Selection Committee. When it was so, there was no need of making temporary appointment. That apart, even if there would have been any urgency warranting appointment on temporary basis, then Rule 14 of the J&K Civil Services (Classification, Control and Appeal) Rules should have been adhered to where-under in the public interest owing to emergency immediate filling of vacancy if imperative so as to avoid undue delay, excessive expenditure or inconvenience, in that eventuality in the case of the petitioner prior approval of the Controlling Authority i.e. Chief Justice was imperative. 8. Contention of the appearing counsel for the petitioner that Rule 14 of J&K Civil Services (Classification, Control and Appeal) Rules is not applicable in view of Rule 3 of said Rules, is misplaced because Section 30 of "the Act" does not provide for making temporary appointments, thus Rule 14 of J&K Civil Services (Classification, Control and Appeal) Rules was to be adhered to. Respondent No.4 has in an arbitrary manner issued the order of appointment which on its own terms would not confer any indefeasible right upon the petitioner to hold the post indefinitely. When it is so, the writ jurisdiction cannot be invoked as no enforceable right has accrued to the petitioner. 9. The contention of the appearing counsel for the petitioner that for disengaging the petitioner proper procedure as prescribed under service laws should have been adhered to. This contention is without any substance as the appointment of the petitioner was not absolute but was temporary till appointment of Process Servers on proper selection. For proper selection posts had been referred to the Selection Committee. So on selection petitioner even otherwise had to be discontinued. That apart, in the present case the order of appointment has been issued in contravention of the rules. It is an order not recognized by any service rule. When such is position, the control exercisable by the High Court through Chief Justice in terms of Rule 4 of the Rules relating to appointment of ministerial officers of the subordinate courts has rightly been invoked by conveying that the action is not confirmed. It shall be quite apt to quote answer to formulated question No.II of the Full Bench judgment referred above: "The power of appointment of ministerial officers vested in the District Judge can be regulated by the Chief Justice by exercising the power of control under Sub-section (4) of Section 30 when there exist no provision determining the mode and method of recruitment." 10. According to the appearing counsel for the petitioner the appointment order dated 30.11.1996 favouring the petitioner had been confirmed in terms of a telegram received by the District Judge, Pulwama on 26.2.1997. Same is totally denied by the respondents in their counter affidavit as according to them no such telegram has been sent. This gives rise to a factual dispute which cannot be gone into by the writ court. 11. For the above stated reasons, the writ petition on the face of it is not maintainable as no enforceable right exist in favour of the petitioner, as such, is dismissed along with connected CMPs.