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2017 DIGILAW 862 (JK)

Subash Chander v. State

2017-09-15

ALOK ARADHE, B.S.WALIA

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JUDGMENT : Alok Aradhe, J. In this intra court appeal, the appellants has assailed the validity of the judgment dated 10.12.2007 passed by the learned Single Judge by which the writ petition preferred by the appellants has been dismissed. In order to appreciate the appellants’ challenge to the impugned order, few facts need mention which are stated infra. 2. The State Government vide order dated 24.04.1998 framed a policy regarding recruitment of temporary lecturers in Higher Education Schools on academic session basis. The qualification which was prescribed was post graduation in the concerned subject. Initially the engagement was to be made for a period of two months which could be extended depending upon the requirement up to maximum of one session. The selection of lecturers was to be made from within District and in case of non availability of a candidate in a particular subject, the candidate from adjacent district could be considered for engagement. The candidate appointed on such arrangement was entitled to monthly remuneration of Rs.3500/- per month. The appointment however was purely temporary and the candidate after opting for such an appointment had to furnish the undertaking that he/she will not claim any appointment on permanent basis against the post. Condition No.4 of the Government order which is relevant for the controversy which is involved in the instant appeal is reproduced below: “iv. The appointment will be purely temporary and candidates will be asked to give an undertaking that he/she will not ask for any appointment on a permanent basis and there will be no commitment of the State Government in this behalf” 3. Thereafter vide Government Order dated 16.07.1998, the earlier Government Order was partially modified and the Chief Education Officers of the respective areas were directed to identify the higher secondary schools where vacancies were available. However, the other conditions were not altered. Once again by an order dated 07.06.2000, the order was partially modified and the remuneration was enhanced from Rs.3500/- to Rs.4500/- per month. By an Government Order dated 31.07.2003, the State Government upgraded 18 middle schools to the level of high schools and 30 high schools to the level of higher secondary schools and some additional posts were created in different categories. In terms of the aforesaid order, the appointment of temporary lecturers was required to be made on consolidated amount of Rs.7000/- per month. 4. In terms of the aforesaid order, the appointment of temporary lecturers was required to be made on consolidated amount of Rs.7000/- per month. 4. In pursuance of the aforesaid scheme, the appellants were appointed as temporary lecturers on contract basis on monthly remuneration of Rs.7000/- in different institutions. The term of engagement of the appellants was extended from time to time by the respondents. However, their services were not regularized. It was also the grievance of the appellants that in similar set of circumstances, Full Bench of this Court at Srinagar while deciding SWP No.1309/1998 and other connected petitions had issued directions on the basis of concession given by learned Advocate General regularized the services of their counter parts. However, the similar benefit has been deprived to them who belong to Jammu region. The appellants thereupon filed various writ petitions in which they sought a relief of regularization. The learned Single Judge vide order dated 10.12.2007 inter alia held that the post on which the appellants have been appointed on contract basis are State cadre posts and cannot be filled up by regularizing the services of the appellants as they have been engaged by District Level Committees without adopting the proper procedure and their services would deem to have been governed by terms of said contract. However, it was directed that the appellants shall be allowed to continue till regular selection is made. The respondents were directed to take steps for initiating the regular selection process on permanent basis and the candidates who were regularized against the migrant vacancies, their appointment was directed to be treated as on contract basis. In the aforesaid factual background, this appeal has been filed. 5. Learned counsel for the appellants submitted that the appellants were appointed under the scheme which initially contained the stipulation that after three years, their services shall be regularized. However, subsequently, the aforesaid condition was deleted by Government order dated 27.10.2003 which is arbitrary. On the other hand, learned AAG has submitted that the order dated 27.10.2003 was challenged in SWP No.1670/2004 which was dismissed by a bench of this Court vide order dated 22.11.2004 and the aforesaid order has attained finality. It is further submitted that appellants do not have any right of regularization. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. It is further submitted that appellants do not have any right of regularization. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the appellants were appointed on contract basis and condition No.4 of Government order dated 24.04.1998, it is evident that their appointment was purely temporary and the candidates were asked to give an undertaking that they will not ask for appointment on a permanent basis. The appellants were admittedly appointed under the aforesaid scheme which did not contain any provision for regularization. In this appeal, the appellants have challenged the validity of the order dated 27.10.2003 by which the condition with regard to regularization of services of the appellants was deleted. The validity of the aforesaid order has already been upheld in SWP No.1670/2004 vide order dated 22.11.2004 and admittedly the aforesaid order has attained finality. 7. It is pertinent to mention here that the State Government had also filed LPA namely LPASW No.39/2008 against the order dated 10.12.2007 passed by the learned Single Judge which has been impugned in the instant appeal and the Division Bench of the Court in paragraph 4 of the said order held as under: “4. Insofar as the direction that the services of candidates who have been regularized against migrant vacancies or other vacancies which became available shall also be treated on contract basis, the same cannot be sustained in view of the directions issued by Full Bench of this Court in its decision rendered in SWP NO.1309/1998 dated 28.06.2001 based on the consent given by the learned Advocate General for the State which judgment was also implemented. Again the said issue was considered by another Full Bench of this Court in SWP No.2347-J/2003 by order dated 14.07.2008 which is also on the same line to that of earlier Full Bench Judgment, therefore, direction issued by the Writ Court in paragraph No. IV to treat the candidates who have been regularized on contract basis cannot be sustained in the light of the said findings of Full Bench decisions and the same is set aside.” 8. Admittedly, the appellants have been employed under the Scheme on contract basis. The aforesaid scheme contains a stipulation that the appellants will have no right to seek regularization. Admittedly, the appellants have been employed under the Scheme on contract basis. The aforesaid scheme contains a stipulation that the appellants will have no right to seek regularization. The right of regularization of the services contained in the scheme was taken away by Government Order dated 27.10.2003, the validity of which was challenged in SWP No.1670/2004 which was dismissed by a bench of this Court and admittedly, the aforesaid order has attained finality. Therefore, in the absence of any right of regularization, no relief can be granted to the appellants. In the result, the appeal fails and is hereby dismissed.