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J&K High Court · body

2016 DIGILAW 8 (JK)

Tara Singh & Ors. v. State of J&K & Ors.

2016-02-01

DHIRAJ SINGH THAKUR

body2016
JUDGMENT 1. Petitioners before this court are employees of six All Farmers Service Co-operative Societies, (in short referred to as FSS) which were wound up vide order dt. 27.7.1990, passed by the Registrar, Cooperative Societies, J&K, Jammu, in terms of the provisions of Section 65 read with Section 66 of the J&K Cooperative Societies Act, 1960 (here-in-after called the Act of 1960) and thereafter came under liquidation. The basis of the winding up order was the alleged embezzlement/mis-management and mis-deeds in the running of the aforementioned Cooperative Societies. First round of litigation: 2. In the first round of litigation, the employees of the FSS filed various petitions challenging the order of the Registrar Cooperative Societies ordering winding up of the aforementioned Societies. By virtue of judgment and order dt. 31.3.1995, passed by this Court in OWP No. 691/90 and connected petitions, certain directions were given to the Registrar Co-operative Societies, Jammu, to convene a meeting of the officials of the Cooperative Department as also such Co-operative Institutions in Jammu, Kathua and Udhampur districts, which are either wholly owned by the Government or in which the Government had a substantial control, to explore the means to re-habilitate such of the petitioners in the aforementioned writ petitions who are otherwise rendered un-employed because of the liquidation of the Societies. This direction was issued to alleviate the miseries faced by the petitioners. A comprehensive report was directed to be prepared and liberty was granted to the parties to agitate the matter before the court in case, the same was not acceptable to them. Second round of litigation: 3. In the second round of litigation, two writ petitions bearing SWPs No. 1648/98 and 1371/98, came to be filed by some of the employees of the FSS challenging the report of the Registrar Cooperative Societies, J&K, Jammu, dt. 17.6.1995, with a further prayer inter-alia for a writ of mandamus commanding the respondent State to accord the same treatment to the employees of the FSS as has been given to the employees of the Rural Electric Co-operative Society, Samba, (in short RECS, Samba) in terms of order dt. 16.12.1997. 4. The aforementioned writ petitions came to be disposed of in terms of judgment and order dt. 31.5.2001, inter alia with a direction to the respondents to consider the prayer of the writ petitioners for their adjustment on the analogy of the employees of RECS, Samba. 16.12.1997. 4. The aforementioned writ petitions came to be disposed of in terms of judgment and order dt. 31.5.2001, inter alia with a direction to the respondents to consider the prayer of the writ petitioners for their adjustment on the analogy of the employees of RECS, Samba. The relevant observations made in this regard are being reproduced herein below- "(iii) That the State Government would also consider the claims of the petitioners in the same way as has been done in the case of employees of Rural Electric Cooperative Society, Samba, and would accord same treatment to the petitioners;." 5. The respondent-State, pursuant to the aforesaid directions issued by this court, considered the case of the petitioners in the aforementioned writ petitions and rejected the same vide order dt. 19.12.2002, which is the order impugned in writ petition, SWP No. 1691/04. COA(SW) 14-C/02: 6. The aforementioned contempt petition had been filed by the petitioners for the purported dis-obedience of the judgment and order passed by this court in SWP Nos. 1648/98 and 1371/98, dated 31.5.2001. This contempt petition came to be dismissed vide order dt. 21.7.2004, with the following observations- ".......I have carefully perused the record of this case. Vide judgment dated 31.5.2001 rendered in SWP Nos. 1648/98 and 1371/98, the respondents were directed to consider the case of petitioners in the same way as has been done in case of employees of Rural Electric Co-operative Society, Samba. The respondents did consider the case in terms of the judgment and on consideration found that the petitioners are not similarly situated as employees of the Rural Electric Co-operative Society, Samba, who being technical hands were absorbed in the Power Development Department. The submission of learned counsel for petitioners that there was a positive direction to the respondents to adjust the petitioners in Government departments is totally misconceived, as perusal of the judgment does not indicate that the Government was bound to absorb the petitioners in various Government departments. The direction to the Government was to consider the case of the petitioners in the same way as has been done in case of employees of Rural Electric Co-operative Society, Samba. The Government has objectively considered their case and on finding that the petitioners are not similarly situated has rejected their claim. The petitioners if are aggrieved of Order No. 45-Coop. The Government has objectively considered their case and on finding that the petitioners are not similarly situated has rejected their claim. The petitioners if are aggrieved of Order No. 45-Coop. of 2002 dated 19.12.2002, they are at liberty to challenge the same in accordance with law. As far as present contempt petition is concerned, the same has to be dismissed and it is so ordered. The rule issued against the respondents is discharged." 7. In the backdrop of the aforementioned facts, the petitioners in writ petition, SWP No. 1691/2004, challenge the order dt. 19.12.2002, whereby the claim of the petitioners for their adjustment was rejected, on two grounds: i/ That the State Government had no option but to absorb the petitioners on the analogy of the employees of RECS, Samba, on the basis that the order of consideration dt. 31.5.2001, passed by this court in the SWP No. 1648/98 and connected petition, was a positive direction and not a simple order of consideration; and ii/ That the order of rejection was bad and illegal as there was no basis for the respondents to deny the petitioners a similar treatment as was accorded to the employees of RECS, Samba. 8. While dealing with the first issue, the counsel for the petitioners urged that the tone and tenor of the directions ordering consideration was such that it allowed no discretion with the respondents to refuse absorption of the petitioners as was allowed in the case of RECS, Samba. It was urged that the direction to accord the same treatment to the petitioners meant their absorption and nothing else. 9. This argument, however, cannot succeed in as much as, what had in fact been ordered in direction No. (iii) of the judgment and order dt. 31.5.2001, noticed above, was consideration of the claim of the petitioners. The claim of the petitioners was absorption in Government service. According of "similar treatment", does not imply anything more than considering the petitioners' case for absorption on similar criteria as was adopted while considering the case of the employees of RECS, Samba. The judgment and order dt. 31.5.2001, did not anywhere decide the issue as to whether the petitioners were at par with the employees of RECS, Samba, and that it directed consideration of the case of the petitioners on a similar analogy. The judgment and order dt. 31.5.2001, did not anywhere decide the issue as to whether the petitioners were at par with the employees of RECS, Samba, and that it directed consideration of the case of the petitioners on a similar analogy. This certainly, cannot be taken to be a positive direction ordering absorption of the petitioners in a Government service. 10. The order dt. 21.7.2004, passed in the contempt petition clearly had also held so, which order was not challenged at all before any higher forum. If it were a case of a positive direction, it could have been implemented through the contempt jurisdiction of the court. In my opinion, the direction No. (iii), was not a positive direction for absorption but a simple order of consideration pursuant to which, the respondents have passed the impugned order dt. 19.12.2002. 11. From a reading of the order impugned, it appears that the basis of rejection was the fact that the petitioners were not similarly situate as the employees of RECS, Samba, who were technicians and could provide useful service in the Power Development Department where they were ultimately absorbed. 12. As against this, the order of rejection states that the petitioners being the employees of FSS, had no technical qualification and, therefore, could not be given the same treatment as that of the employees of RECS, Samba. An additional ground taken is regarding the bad financial condition of the Government, which did not warrant absorption of the petitioners in Government service. 13. Further, the order impugned states that the adjustment of the petitioners numbering 95, is a dispute between the management and the employees in as much as, the management had offered employment in bulk without considering the financial position of these Societies. The Government would not be answerable for the mis-deeds committed by the management of these Societies leading to their ultimate winding up and liquidation. 14. Counsel for the petitioners have questioned the order impugned on the ground that the justification given by the respondents for refusing the absorption on the basis that the employees of RECS, Samba, were technicians and could provide useful service, was only an excuse. 14. Counsel for the petitioners have questioned the order impugned on the ground that the justification given by the respondents for refusing the absorption on the basis that the employees of RECS, Samba, were technicians and could provide useful service, was only an excuse. It was urged that all the Cooperative Societies including the RECS, Samba, and that to which the petitioners belong had the same staff pattern which consisted of Clerks, Managers, Accountants, Supervisors, Field Officers, Typists, Drivers and Conductors who did not require any technical qualification. 15. It was further urged that the duties and functions of the employees of RECS, Samba, were not qualitatively different or distinguishable from one being performed by the petitioners. 16. Heard counsel for the parties. 17. Following issues arise for consideration in the present case.: i/ Whether a mandamus can be issued against the State to consider the appointment of the petitioners when the State asserts financial distress; and ii/ Whether a mandamus can be issued to consider the petitioners for appointment contrary to the rules governing the recruitment and appointment to the services under the State, contrary to Articles 14 and 16 of the Constitution of India. Issue No. 1: 18. The State while rejecting the prayer of the petitioners for absorption in the order impugned, has expressed its helplessness on account of its bad financial condition. 19. In my opinion, this by itself is a good ground to upheld the order of rejection passed by the respondent-State in view of the fact that the State cannot be saddled with a financial burden which it is incapable of bearing only with a view to bring the petitioners at par with those earlier absorbed. 20. A Constitution Bench of the Apex Court in Secretary, State of Karnataka and Others v. Uma Devi(3) and Others, (2006)4 SCC 1 , in para 19 of the judgment, has held as under: "19. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. One aspect arises. Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality or of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counter-productive. 21. Needless to say that a direction for absorption of the petitioners would necessarily mean creation of posts which would further entail financial implications. In the present case, there are 95 petitioners before the court. Out of them, few are stated to have passed away. With a view to absorb the petitioners, this court as a necessary consequence, would have to direct the respondent State to create posts which direction, in terms of the judgment of the Apex Court in P.U. Joshi and others v. Accountant General, Ahmedabad and others, (2003) 2 SCC 632, cannot be given as the issue being purely executive. What was held by the Apex court in this regard in the aforementioned case, may be noticed as under- "..Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State.." Issue No. 2 22. The State of Jammu and Kashmir, is industrially, one of the most under-developed States' in the country given its geographical location and limited economic resources. Unemployment is rampant amongst the educated youth who look for avenues of employment mostly under the State. In many cases, thousands of applications are received from Graduates, Post Graduates and even trained professionals for Class IV posts with a view to ensure survival. 23. Invariably the courts are approached to test the fairness in the process of selection for such posts reflecting tremendous competition. 24. Article 41 of the Constitution declares the constitutional goal of inter alia securing the right to work for its citizens subject to limits of its economic capability and development. This Article being a part of the directive principles is made unenforceable by virtue of Article 37. It, therefore, becomes clear that while a citizen cannot claim a right to work under the State or seek public employment as a fundamental right, yet, he has an equal right to be considered for such an employment in terms of Articles 14 and 16 of the Constitution, which guarantees to such a citizen equal protection of laws as also equality of opportunity in matters relating to employment or appointment to any office under the State. 25. The process of appointment to any office under the State generally is governed by the relevant rules, which inter alia, prescribe eligibility conditions as regard age, qualification, experience etc. Appointments are then to be made on a rational, non-discriminatory and fair process of selection from amongst those who fulfill the requirements of the rules so prescribed. 25. In R.N. Nanjundappa v. T. Thimmiah, (1972)1 SCC 409 , the Apex Court held as under- ".......If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." 27. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules." 27. In Delhi Development Horticulture Employees Union v. Delhi Administration, Delhi and Ors, (1992) 4 SCC 99 , the Apex Court held the engagement of daily wagers without advertisement to be backdoor entries and, thus, refused to issue any direction for regularization of the petitioners in the aforementioned case. 28. In Uma Devi's case (supra), the Constitution Bench of the Apex Court in paragraphs 4 and 5 has held as under: "4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is by-passed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment. It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. 5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench." 29. It is this conflict that is reflected in these cases referred to the Constitution Bench." 29. In paragraph 43 of the judgment in the aforementioned case, the Apex Court further held as under: 43.Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the ap-pointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance anless the recruitment itself was made regularly and in terms of the constitutional scheme. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance anless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 30. The purpose of making a reference to the judgments aforementioned was only with a view to highlight and reflect the importance of the need to comply with the requirements of Articles 14 and 16 of the Constitution, notwithstanding the fact that the issue before the Constitution Bench of the Apex Court in the aforementioned case was one pertaining to the right of regularization of the employees appointed by the State or its instrumentalities on temporary, daily wage or casual basis. 31. The petitioners, in the present case, are the employees of FSS which Societies were wound up. The only right asserted by the petitioners is that they should be treated at par with the employees of RECS, Samba, who were adjusted/absorbed in the State Service by the Government. 32. The claim of the petitioners has been rejected by the respondent State on the grounds: i/ That the petitioners had no technical qualification and, therefore, could not be given the same treatment as that of the employees of RECS, Samba; and ii/ that the absorption was not warranted on account of the bad financial condition of the State. 33. 32. The claim of the petitioners has been rejected by the respondent State on the grounds: i/ That the petitioners had no technical qualification and, therefore, could not be given the same treatment as that of the employees of RECS, Samba; and ii/ that the absorption was not warranted on account of the bad financial condition of the State. 33. Testing the facts of the case on the touchstone of the law as discussed herein above, it will be seen that what the petitioners are, in fact, seeking from this court is mandamus which would run to defeat the Articles 14 and 16 of the Constitution as regards those innumerable citizens who despite being qualified and eligible, would be prevented from consideration if the petitioners were directed to be appointed on the analogy of employees of RECS, Samba. Such a direction would, in fact, also permit the backdoor appointment of the petitioners in gross violation of the Service Rules governing such appointments. 34. It is settled law that a mandamus can be issued only if there exists a legal, fundamental or a statutory right. Reliance in this regard can be placed on the judgment of the Apex Court in the case reported as Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College, AIR 1962 SC 1210 . 35. In the present case, the right of absorption, contrary to rules, is not a fundamental right much less a legal or a statutory right. What has been highlighted in the present case is only the fact that the petitioners were similarly situate as the employees of RECS, Samba, who had been absorbed in the Government Service. Equality, it has been held, is a positive concept which cannot be invoked in a manner which would have the effect of defeating Articles 14 and 16 of the Constitution as regards those who despite being eligible, but not being parties to these selections would be affected. 36. In my view, therefore, the petitioners would not have any right to seek a mandamus to the respondent State to absorb them in the State Service contrary to rules or the spirit of the Constitution. 37. Having considered the case at length, I am of the opinion that the order impugned needs no interference. 38. These petitions are, accordingly, found to be without any merit and are dismissed along with all connected CMPs. Petitions dismissed