SWP No. 1357 / 2000 and SWP No. 81 / 2000, decided on 16.10.2000.

Constitution of India, Art. 14 and 16 - Petitioners appointed for specific period of sixty days against migrant post - Continued under various interim orders of Court - Respondents referred the vacancies for selection to Public Service Commission who recommended list of suitable candidates - Petitioners ousted from service on adjustment of selectees to the post - Challenged order of ouster - Held : Petitioners not entitled to continue on the posts.

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

Cases referred : Chronological
1. Dr. M.A. Haque and others v. Union of India and others (1993) 2 SCC 13
2. J&K Public Service Commission v. Narinder Mohan AIR 1994 SC 1808
3. Chandigarh Administration v. Jagjit Singh AIR 1995 SC 705
4. Gursharan Singh v. New Delhi Municipal Committee AIR (1996) 1175
5. State of U.P. and others v. Raj Karan Singh (1998) 8 SCC 529
6. Suraj Prakash Gupta and others v. State of J&K and others (2000) SLJ 183

Petitioners by means of petition no. 81/2000 seeks relief for regularisation of their services on the analogy of Ms. Shabeena Chillo whose services have been regularised in terms of Govt. Order No. 740-HE of 99 dated 29.11.1999 in relaxation of rules, and in terms of the opinion of the Law Minister. They further seek their continuation as Lecturers and consequential benefits of increments, seniority etc.

In writ petition No. 1357/2000, Petitioners seek to quash Govt. Order Nos. 306-HE of 2000 and 307-HE of 2000 dated 11.9.2000 whereby the petitioners have been ousted. The petitioners further seek continuation inservice as Lectures and regularisation of services as per the direction of the Chief Minister and the opinion of the Law Department, besides Govt. Order No. 470-HE of 99 dated 29.11.1999. They further seek initiating of contempt proceedings as the impugned orders have been issued in breach of the Court orders.

Petitioners were appointed in temporary arrangement as Lecturers vide different Govt. Orders, in the year 1991, against the vacancies caused available due to the migration of the occupants of the vacancies. Appointment order of one of the petitioners, as a specimen, is extracted below :

"Sub:- Temporary appointment of Lecturers

Govt. Order No. 35 HE of 1991

Dated: 30.8.1991

Sanction is accorded to the institution of purely temporary arrangement for smooth conduct of academic activity of the colleges against approved substitute positions in respect migrant lecturers as per annexure to this order.

This arrangement shall remain valid during current academic viz 1991and shall cease on the 30th of December 1991.

The initial period of appointment is for sixty days and orders for the second spell may be issued by the concerned Principal after observing two days break on the expiry of first spell, till 30th of December 1991. Subject to satisfactory work performance / conduct, of the temporary appointment during the first spell.

This order shall have effect from 3.9.1991 or from the date, the candidates join whichever is later. Candidates shall have no claim for permanent adjustment in the Department on account of this temporary arrangement. The candidate shall report to the concerned principals of the colleges within seven days, failing which alternative arrangement shall be made by this department.

The temporary arrangements of candidates shall terminate automatically on the stipulated date and there shall be no need of issuing of relieving order.

By order of the Govt. of Jammu and Kashmir."

The similarly situated Lecturers filed SWP No. 2177/91 and vide interim direction dated 25.11.1991, subject to the objections of the otherside, were allowed to continue against the posts. The petitioners were also continued in terms of the said order. The petition came to be disposed off by an order dated 9.9.98 with the following observations:

"It is also made clear that till regular selection is made the petitioners who are in service would continue in service, in case any adverse order is to be passed that be kept in abeyance for fifteen days."

Respondents had in the meantime referred the posts to the Public Service Commission for selection of suitable candidates. The Public Service Commission recommended a list of candidates to be appointed, who have been appointed vide impugned orders ousting the petitioners. Petitioners have not stated in the petition that they have applied against the advertisement issued by the Public Service Commission to seek selection against the posts.

Respondents after considering the order dated 9.9.98 and the direction of the Supreme Court in case titled Suraj Prakash Gupta & others v. State of J&K and others 2000 SLJ 185 passed the impugned orders appointing the selected candidates and ousting the petitions. Orders are framed in similar language. One of the impugned order is reproduced below :

Sub: Appointment of lecturers in Botany under Inservice category.

Ref: Public Service Commission’s letter No. 30-PSC/DR/ Botany-IS/97 dt: 21.8.2000

Government order No. 306 HE of 2000

dt: 11.9.2000.

Whereas, Ms. Nusrat Syed D/o Hakeem Mohd. Syed R/o Sarai Bala, Srinagar was appointed temporarily as lecturer in Botany for smooth conduct of academic activity, for the session 1991-92 i.e. upto 30.12.1991, in Govt. college for Women M. A. Road, Srinagar under Government Order No. 351-HE of1991 dated 30.8.1991;

Whereas, while continuing on the said temporary arrangement the said Ms. Nusrat Syed filed a writ petition in the Hon’ble High Court (SWP No.2177/91) titled Mukthar Ahmad Malik and Others V/s State and Others, for her continuation;

Whereas, the Hon’ble High Court in its interim order dated 25.11.1991 issued following directions :

"Issue notice to the respondents returnable within three weeks, to show cause as to why interim relief sought by the petitioner in this CMP be not granted, meantime subject to objections from otherside, the petitioners be allowed to continue on the posts they were holding subject to vacancy. The petitioners shall be entitled to benefits attached to their posts."

Whereas, Ms. Nusrat Syed continued to occupy the post of lecturer in Botany on the strength of court orders:

Whereas, the post of lecturers in Botany were referred to Public Service Commission vide this office letter No. Educ-coll/PSC/Panel/95 dated 17.7.97 and letter of Even No. dated 16.10.97 for making selection against the available posts;

Wheras, the J&K Public Service Commission vide their letter No.30-PSC/DR/Botany-IS/Botany-IS/97 dated 21.8.2000 recommended, among others, the appointment of Nighat Amin D/o Sh. Mohd. Amin Shah W/o Mohd. Amin Keng R/o Tengpora Nawakadal, Srinagar, as lecturer in Botany;

Whereas, the Hon’ble High Court pronounced the Judgement on 9.9.98 in SWP No. 2177/91 titled Mukhtar Ahmad Malik & others v. State and others, the operative part of which reads as under:-

"It is also made clear that till regular selection is made, the petitioners who are in service would continue in service. In case any adverse order is to be passed, the petitioners be heard. In case any adverse order is actually passed that be kept in abeyance for fifteen days."

Whereas, the Hon’ble Supreme Court of India in SWP No. 4744 of 1999 titled "Suraj Prakash Gupta and Others v. State of J&K and Others" has issued following directions to the State of Jammu and Kashmir on 28.4.2000;

"The State of Jammu and Kashmir will ensure that no relaxation of basic recruitment rules is made for direct recruitment through Public Service Commission, or for purposes of regular promotion / recruitment by transfer"

Whereas, in terms of the Judgement of the Single Bench dated 9.9.98 and also the directions of the Hon’ble Supreme Court of India Ms. Nusrat Syed has no right to hold the post on temporary basis henceforth,

Now, therefore, as recommended by the Public Service Commission, sanction is accorded to the appointment of Nighat Amin D/o Mohd. Amin Shah W/o Mohd. Amin Keng R/o Tangpora, Nawakadal, Srinagar as Lecturer in Botany on regular temporary basis in the pay scale of Rs. 8000-13,500 in Women’s College, M. A. Road, Srinagar against the post held by Ms. Nusrat Syed who is ousted from temporary arrangement......"

The petitioners have challenged the impugned order on the ground that it has been issued by the respondents in presence of the restrained order passed by the court. The petitioners being appointed against migrant vacancies have the right to continue till the migrants return. The similar matters have been referred to the larger Bench, these petitions also deserves to be referred to larger Bench and till the Larger Bench decides the petitions, the petitioners being similarly situated occupying the vacancies of the migrants are entitled to continue. The petitioners having rendered ten years service on adhoc basis are entitled to seek regularisation. The impugned orders passed by the respondents are, therefore, illegal and deserve to be quashed.

The plea of Mr. Qayoom that petitioners being continuing since last ten years are entitled to seek regularisation is misplaced. The petitioners were appointed in the year 1991 for a period of 60 days and have been continued on the strength of the interim direction dated 25.11.1991 of the court passed in SWP No. 2177/91. It is settled proposition of law that the interim orders passed by the courts are co-terminus with the final disposal of the petition. Petitioners continuation as lectuarers on the strength of the court order does not vest any right to seek regularisation in view of the pronouncement of the Supreme Court in case State of UP and Others v. Raj Karan Singh (1998(8) SCC 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...."

Another argument of Mr. Qayoom that the Petitioners are entitled to seek regularisation on the analogy of regularisation of services of Ms. Shabeena Chiloo in terms of Government order dated 29.11.1999 is also misplaced. Respondents regularised the services of Ms. Shabeena Chillo vide Govt. order No. 1095-HE of 1997 dated 31.7.1997 in relaxation of rules. This order came to be rescinded vide Government order No. 1127 HE of 1997dated 8.8.1997. Order dated 8.8.1997 was subsequently withdrawn vide Govt. Order No. 470-HE of 1999 dated 29.11.1999, because of the observations of the court in SWP No. 3553/97 that the order dated 31.7.1997 does not indicate that it has been passed in relation of rules and that the order dated 8.8.1997 was passed without affording opportunity of being heard. With the result the order dated 31.7.1997 regularising the appointment of Miss Shabeena Chillo became operative. The petitioners cannot seek parity or anology for regularisation of their services unless they make out that the appointment/ regularisation of the services of Ms. Shabeen chillo was made in accordance with the procedure prescribed by law and such appointment is legally valid. The Supreme Court has repeatedly pronounced that no appointment should be made in derrogation of the procedure prescribed by law. In Dr. M. A. Haque and others v. Union of India and others (1993) 2 SCC13 the Supreme Court has held ;

"The recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the by passing of the Public Service Commission are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the public service commission. It appears that since Supreme Court has in some cases permitted regularisation of the irregularly recruited employees, some Governments and authorities have been increasingly resorting to irregular recruitments. The result has been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidates dicated by various considerations are recruited as a matter of course."

The Supreme Court in J&K Public Service Commission v. Narinder Mohan reported in AIR 1994 SC 1808, where the respondents regularised the services of the Doctors in breach of the recuritment rules, while seting aside the appointments, has held ;

"The next question is whether the direction given by the High Court to regularise the services of the respondents is valid in Law. It is true that the adhoc appointees have been continuing from 1986 onwards but their appointments are de hors the Rules. Rules prescribe only two modes of recruitment, namely direct recruitment or promotion by selection. As regards the Lecturers are concerned, it is only by direct recruitment. High Court, namely regularisation by placing the service record of the respondents before the PSC and consideration thereof and PSC’s recommendation in that behalf is only a hybrid procedure not contemplated by the Rules. Moreover, when the Rules prescribe the direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill-in notified vacancies is consistent with the right to apply for by qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under Art. 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Arts. 14 and 16 and in violation to the statutory rules. The PSC cann’t be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the constitution and the law."

In SLP 4744/99 titled Suraj Prakash Gupta and others v. State of J&K and Others (2000 SLJ 183) the Supreme Court in para 78(c) of the Judgement has directed the State of Jammu and Kashmir as under;

"(C) The State of Jammu and Kashmir will ensure that no relaxation of basic recruitment rules is made for direct recruitment through P.S.C. or for purpose of regular promotions/ recruitment by transfer."

The services of the petitioners cannot be regularised unless it is shown that regularisation of services of Ms. Shabeen Chilloo is in accordance law. An illegal action cannot be enforced in the court of law to seek parity, tracing discrimination in terms of Article 14 of the constitution. The concept of equity before law is a positive and not negative concept. Illegal appointment made in breach of the recruitment rules cannot be enforced to seek parity. This proposition of law has been settled by the Supreme Court in case Chandigarh Administration v. Jagjit Singh reported in AIR 1995 SC 705 and this view has been reiterated by the Supreme Court in case Gursharan Singh v. New Delhi Muncipal Committee (AIR 1996 1175) holding ;

" The guarantee of quality 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 a 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 principle 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 claim 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 petitioner that this 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."

Another limb of the argument of Mr. Qayoom is that the petitioners being similarly situated to those whose cases have been referred to the Larger Bench and permitted to continue in service, the petitioners cases be also referred and the petitioners be permitted to continue. The facts of the present case are quite different. Respondents have chosen to fill up the posts by duly selecting candidates through Public Service Commission. The petitioners grievances is unjustified for the reason that in presence of the selected candidates they have no preferential right in terms of their appointment to continue against the post. This argument of Mr. Qayoom, therefore, holds no water.

The impugned orders have been passed by the respondents quite in confirmity with the direction of the Supreme Court and the petitioners neither can be continued nor their services can be regularised. In view of the aforestated proposition of law.