The argument of learned counsel that the petitioner should be extended similar treatment in terms of Art. 14 of the Constitution of India, which had been extended to Abdul Hamid Raina and Abdul Hamid Parray who were similarly situated is also misplaced. Before Art. 14 is invoked the petitioner has to make out that the appointment of those with whom the petitioner traces similarly is valid in law, which he could not make out. The appointment of the petitioner has been found de-hors Rule 14 Civil Service (Classification, Control and Appeal) of the J&K Rules, 1956. Therefore, the petitioner cannot invoke Art. 14 for alleged discrimination and similar treatment. [Para 7]

Advocates who appeared in this case :
Mr. Majid Jehangir, Advocate for the petitioner
Sr. Additional Advocate General Mr. M.I. Qadiri for the respondents

Cases referred : Chronological
1. Gurcharan Singh v. New Delhi Municipal Co. AIR 1996 SC 1175
2. (1998) 8 SCC 529

By virtue of SWP No. 1317/1993, petitioner seeks a direction to the respondents to allow him to continue against class IV post in Govt. High School Purnewa, Budgam and not to disturb the petitioner from his place of posting. He further seeks release of his and to regularise his services.

In SWP No. 50 / 1999, petitioner seeks that his services be regularised and the treatment be extended to him which has been extended to Abdul Hamid Raina and Ab. Hamid Parray by regularising their services under order No. CEO /SWP / 148 / 4325-29 dated 16-11-96 who were similarly situated with him. The petitioner came to be appointed against class IV vacancy in the Education Department for a period of 60 days by the Deputy Commissioner, Budgam vide his order dated 13-5-1993. Pursuant thereto, the petitioner was adjusted by the District Education Officer, Budgam vide his order dated 26-5-1993 in High School Parnew. Petitioner has been permitted to continue by interim direction dated 19-7-1993 in writ petition No. 1317 / 1993 and is continuing as such. The petitioner seeks regularisation of his services on the ground that he is continuing till date and similarly situated person’s services have been regularised and the petitioner is also entitled to the same treatment, in terms of Article 14 of the Constitution of India.

Mr. Qadri, learned Sr. AAG in rebutttal has submitted that the services of the petitioner cannot be regularised as his appointment is abinitio bad and without jurisdiction. The petitioner came to be appointed by the Dy. Commissioner, Budgam in the Department of Education who has no jurisdiction as he is not the appointing authority under the service rules governing the services of the Education Department. His further plea is that the appointment of the petitioner was for a fixed term of sixty days and has come to an end by efflux of time. Petitioner being continuing on the strength of the court order has no right to seek continuation or regularisation. His another submission is that similar treatment also cannot be granted to the petitioner unless it is made out that the order on the basis of which regularisation is being sought is legally valid and sustainable in law.

Heard learned counsel for the parties and perused the pleadings.

The appointment of the petitioner by the Deputy Commissioner, Budgam, cannot be sustained for the simple reason that the Deputy Commissioner is not the appointing authority under the rules governing the service. The statutory power of appointment of a class IV employee in the Education Department is vested with the District Education Officer. The petitioner has been permitted to continue by interim order of the court. His continuation on the basis of the court order does not vest any right in him to seek regularisation in view of the law laid down by the Supreme Court in 1998 (8) SCC Page 529, holding that :

"merely because a person continues under the interim orders of the court, such continuance on the post cannot and, in this case, does not confer on him any right for continuance, it does not enhance his case for regularisation. It is only an interim arrangement pending decision by the court and cannot disturb the position in law or equities."

The appointment of the petitioner for a specific period of sixty days has come to an end by efflux of time and the petitioner is not entitled to seek the relief of regularisation or continuation as this proposition of law has been settled by the Supreme Court in AIR 1992 SC 2070 holding that :

"where appointment is purely on adhoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on ‘adhoc’ basis for more than a year. He cannot claim regularisation in service on basis that he was appointed on adhoc basis for more than a year."

The argument of learned counsel that the petitioner should be extended similar treatment in terms of Art. 14 of the Constitution of India, which had been extended to Abdul Hamid Raina and Abdul Hamid Parray who were similarly situated is also misplaced. Before Art. 14 is invoked the petitioner has to make out that the appointment of those with whom the petitioner traces similarity is valid in law, which he could not make out. The appointment of the petitioner has been found de-hors Rule 14 Civil Service (Classification Control and Appeal) of the J&K Rules, 1956. Therefore, the petitioner cannot invoke Art. 14 for alleged discrimination and similar treatment in view of the law laid down by the Supreme Court Casein Gurcharan Singh v. New Delhi Municipal Co. AIR 1996 SC 1175 holding that:

"The guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or Court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, the others cannot invoke the jurisdiction of the High Court or of the Supreme Court, that the same irregularity or illegality be committed by the State or an authority which can be held to be state within the meaning of Art. 12 of the constitution. So far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same but they cannot claim orders which are not sanctioned by law in their favour on principal of equality before law. Neither Art. 14 of the constitution conceives within the equality clause this concept nor Art. 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continuance and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioners that his claim being just and legal, has been denied to him. While it has been extended to others and in this process there has been a discrimination."