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2018 DIGILAW 541 (JK)

Shabir Ahmad Kuchay v. State of J&K

2018-07-19

ALI MOHAMMAD MAGREY

body2018
JUDGMENT : 1. Through the instant petition, petitioner seeks a direction on respondents for release of 15 months withheld salary and also allow him to mark his attendance on the post of Sanitary Supervisor. 2. The petitioner’s case set up in the writ petition is that, in terms of some service sheet and order for attending the Election duty in the year 2014 deputed by Executive Officer Municipal Council Sopore vide order dated 17.03.2014, he was directed to report to Sub Divisional Magistrate Sopore for deployment on Election duty in the year 2014. The Sub Divisional Magistrate, Sopore vide order dated 19.03.2014 utilized his services in the election process of 2014 on which the petitioner in fact set up his claim for regularization as Sanitary Supervisor from the date he has been engaged on casual basis. He claims that his service book was prepared and entries were made therein. It is submitted that the petitioner despite rendering services is not being paid salary for 15 months. Apprehending that respondents might dispense with his services, he filed the writ petition seeking a writ of Mandamus commanding the respondents, inter alia, to allow him to continue on the post of Sanitary Supervisor and to pay him the withheld salary and also allow to mark his attendance. 3. In response, the respondents in their objections took the stand that none of the legal, constitutional or fundamental rights of the petitioner had been violated or infringed; that the petitioner seeks a relief dehors the law; that in view of the embargo on filling up of posts or making engagements on casual or consolidated basis imposed vide Government order no.214-HUD of 2008 dated 23.05.2008, any exercise of any functionary of engaging individuals at any level is rendered incompetent and that respondent no.3 did not have the power to undertake such an exercise; that the petitioner’s appointment was dehors the aforesaid Government order and that, since the petitioner had not challenged the said Government order, he cannot seek any consideration in violation thereof. If any recruitment is to be made against Class IV post, due selection process is required to be followed. 4. While going through the relieving order for deployment on election duty (supra), on which the foundation of the writ petition has been laid, one comes to an inescapable conclusion that petitioner came to be engaged without following due procedure established under law. 4. While going through the relieving order for deployment on election duty (supra), on which the foundation of the writ petition has been laid, one comes to an inescapable conclusion that petitioner came to be engaged without following due procedure established under law. The order has been passed in the interests of administration as if the Executive Officer was passing order of deployment. The order on the face of it is dehors the rules and without any competence. It is a back door entry. 5. Schedule 1-B of the Civil Service Regulations, the Executive Officer, being a Class IV Officer, was competent to make the appointment of the petitioner on a class IV post; and second, that the appointment of the petitioner having been made on temporary basis, Government order no.214-HUD of 2008 dated 23.05.2008 does not apply and that the appointment of the appellant is governed by the J&K Civil Services (Temporary Service) Rules 1961 and, hence, not dehors the Rules. 6. Heard learned counsel for the parties and considered the matter. 7. Before adverting to the contentions raised by learned counsel for the petitioner, it needs a mention that the petitioner has made a specific averment in the writ petition that his appointment was made in due course of law. The phrase “in due course of law” is synonymous to “due process of law” in accordance with the law of the land. The law of the land mandates that a public post can be filled up only in accordance with the procedure laid down in the relevant recruitment rules. 8. The Municipal Committee, Sopore, is the creation of a Statute, namely, the Jammu and Kashmir Municipal Act, 2000 (for short the Act). Section 307 of the Act relates to the posts in Municipality and appointments thereto. Sub- sections (1) and (2) of Section 307 provide as under: (1) Subject to the provisions contained in this Act and any other condition of services prescribed by the Government by notification, the Municipality may with the previous approval of the Government or any other officer authorized in this behalf, appoint such officers and servants as it considers necessary for the efficient discharge of its duties. (2) The qualifications, method of recruitment, salaries, leave, allowances and other conditions of service, including disciplinary matters of such officers and servants shall be such as may be prescribed.” The Government in exercise of the powers conferred by Section 307 and all other enabling provisions of the Act has made the Rules called as the Jammu and Kashmir Urban Local Body Institutions (Management) Service Recruitment Rules, 2008 (for short the Rules of 2008). Rule 5 of the Rules of 2008 prescribes the qualification and method of recruitment. It reads as under: “(1) No person shall be eligible for appointment or promotion to any post in any class, category or grade in the service unless he/she possesses the qualification as laid down in Schedule-II and fulfils other requirements of recruitment as provided in the rules and orders for the time being in force. (2) Appointment to the service shall be made: (a) by direct recruitment; or (b) by promotion; or (c) partly by (a) and partly by (b) in the ratio and in manner as mentioned against each post. Provided that all posts to be filled up by promotion/direct recruitment shall be referred to the Departmental Promotion Committees/Selection Agency as the case may be”. 9. The proviso appended to Rule 5 of the Rules of 2008, quoted hereinabove, unambiguously prescribes that all posts to be filled up by direct recruitment shall be referred to Selection Agency. The claim of the petitioner is that he was appointed as Sanitary Supervisor by Executive Officer Municipality. Since neither there is any order of appointment nor the Executive officer Municipality holds the power to appoint the petitioner on the post on which he claims to be appointed. Even the Rules of 2008 have been promulgated vide SRO 417 dated 18.12.2008; meaning thereby that as on the date the petitioner claims to have been appointed, the Rules of 2008 were in operation. Admittedly, the post was not referred to the Selection Agency. Consequently, the petitioner’s appointment has not been made in accordance with the mandate of proviso to Rule 5 of the Rules of 2008. Any appointment made in contravention of the aforesaid Rule and without observing the procedure established by law cannot, but be dehors the Rules. Since the appointment was made in total disregard of the aforesaid provision of the Rules of 2008, it cannot, but be termed as a backdoor appointment. 10. Any appointment made in contravention of the aforesaid Rule and without observing the procedure established by law cannot, but be dehors the Rules. Since the appointment was made in total disregard of the aforesaid provision of the Rules of 2008, it cannot, but be termed as a backdoor appointment. 10. The issue of appointment made dehors the rules has come up before the Supreme Court umpteen times. In Satchidananda Misra v. State of Orissa, (2004) 8 SCC 599 . The Supreme Court in paragraph 7 of the judgment held as under: “It is an admitted position that the provisions of the 1979 Rules were not followed and the appointments made in 1980 were after the said Rules had been enforced. This, in our opinion, is an illegality which strikes at the root of the appointment and, therefore, it is beyond the scope of the legislature to validate such illegal appointments as any such appointment w9ould violate Articles 14 and 16 of the Constitution…” 11. In a recent judgment in Bhupendra Nath Hazarika v. State of Assam, (2013) 2 SCC 516 , the Apex Court has again had the occasion to deal with the issue. While referring to some of the earlier judgments, it was observed and held as under: “53. In University of Kashmir v Mohd. Yasin [ (1974) 3 SCC 546 ] this Court expressed the view that an equitable ground does not clothe an appointment with a legal status. Similar view was also expressed in Swapan Kumar Pal v. Samitabhar Chakraborty [ (2001) 5 SCC 581 ]. 54. In State of Haryana v. Haryana Veterinary and AHTS Assn., [ (2000) 8 SCC 4 ], a three-Judge Bench, after x-ray of the relevant rules, came to hold that when appoints are made in violation of the recruitment rules, the said appointments cannot be treated to be regular. 55. The aforesaid authorities clearly lay down the principle that when there is violation of the recruitment rules, the recruitment is unsustainable…” In paragraphs 61, 63 and 64 of the judgment, the Apex Court observed as under: “61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept. 62… 63. In State of Karnataka v. Umadevi (3) [ (2006) 4 SCC 1 ] (SCC p. 18 para 6) the Constitution Bench, while discussing the role of State in recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer. 64. In Mehar Chand Polytechnic v. Anu Lamba [ (2006) 7 SCC 161 ] (SCC p. 166, para 16) the Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts.” 12. In view of the recruitment rules in the instant case, as quoted above, and the fact that the petitioner seeks appointment in the year 2016, when the recruitment Rules were framed in 2008, applying the law laid down by the Apex Court in the aforesaid judgments, no exception can be taken to the judgment of the learned Writ Court, holding that the appointment of the appellant was dehors the Rules and, therefore, a backdoor appointment. 13. Learned counsel for the petitioner contended that the appointment of the petitioner being temporary, there was no requirement of following the procedure for making such appointments as established under law. Again the argument is noted only to be rejected. The Rules of 2008 do not contemplate making of temporary appointments. Even if it were so, law is settled that even while making temporary appointments, the mandate of Articles 14 and 16 of the Constitution has to be observed in letter and spirit. Reference to Rule 5 sub-rule (2) of J&K Civil Services (Temporary Service) Rules 1961 by Mr. Bashir, therefore, is misplaced. Even if it were so, law is settled that even while making temporary appointments, the mandate of Articles 14 and 16 of the Constitution has to be observed in letter and spirit. Reference to Rule 5 sub-rule (2) of J&K Civil Services (Temporary Service) Rules 1961 by Mr. Bashir, therefore, is misplaced. It may be observed here that the Rules of 1961 were framed in context of the provision of temporary appointments then contained in Rule 14 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 which provided continuation of a temporary / ad hoc appointment until the selections were made and cases were conceivable that a temporary appointee could be continued for years. Reference in this context may be made to the judgment rendered by a learned Single Judge of this Court in Thomas Masiah v. State of J&K, 2004 (2) JKJ 197 , wherein the Court has traced the purport of the 1961 Rules. Therefore, the Temporary Rules of 1961 have no application in the instant case. The contention of learned counsel for the appellant as to competence of respondent no.3 to make appointment of the appellant is also not tenable because the appointment was made in total disregard of the recruitment rules. 14. In view of the above, I am of the considered view that the appointment of the petitioner was dehors the prescribed Rules and, therefore, illegal even no evident document is on the writ record which demonstrates that the petitioner has been genuinely appointed. Petitioner is seeking a command in the nature of Mandamus to compel the respondents to perpetuate an illegality. A writ of Mandamus cannot be issued to perpetuate an illegality and this Court cannot issue directions that a mistake be perpetuated on any ground whatsoever. Accordingly, I do not see any plausible averment made in the petition or any documentary evidence by which the instant petition can be allowed. 15. In view of above, the writ petition being meritless, is hereby dismissed. Interim direction, if any, shall stand vacated.