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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
A.Q. Parray, J.
Habibullah Mir - Appellant
Versus
State Of J&K & Ors. - Respondent
SWP No. 1573/1989
Decided On : 23 February, 1994
ADHOC APPOINTMENT - REGULARISATION - BACK DOOR ENTRY - PUBLIC EMPLOYMENT - ARTICLE 14, 16, 21, 311 - CONSTITUTION OF INDIA - SECTION 133 - STATE CONSTITUTION - ARTICLE 320 - CONSTITUTION OF INDIA - PUBLIC SERVICE COMMISSION - ROLE AND FUNCTION - APPOINTMENT OF LECTURERS - GOVERNMENT ORDER - INTERPRETATION - CONDITIONS OF APPOINTMENT - TERMINATION OF APPOINTMENT - CONTRACTUAL ENGAGEMENT - REGULARISATION OF ADHOC APPOINTMENTS - GOVERNMENT ORDER NO: 1220-GAD OF 1989 - CUT OFF DATE - ARBITRARINESS - JUDICIAL REVIEW - SCOPE - ADHOC DOCTORS CASE - PUBLIC SERVICE COMMISSION VERSUS DR. NARINDER MOHAN AND OTHERS - RELEVANCE - REGULARISATION OF ADHOC APPOINTMENTS - CONDITIONS AND PROCEDURE - DIRECT RECRUITMENT - PROMOTION BY SELECTION - MODES OF RECRUITMENT - STATUTORY RULES - COMPLIANCE - FAIRNESS AND TRANSPARENCY IN APPOINTMENT PROCESS - BACK DOOR APPOINTMENTS - PROHIBITION - MERIT-BASED SELECTION - ROLE OF PUBLIC SERVICE COMMISSION - JUDICIAL INTERVENTION - LIMITS - INTERIM DIRECTIONS - VACATION - REFUND OF AMOUNTS RELEASED ON FURNISHING OF UNDERTAKING - UNDERTAKING BY PETITIONERS - COMPLIANCE.
Fact of the Case:
Petitioners were appointed as Lecturers on an ad-hoc basis for an academic session, subject to specific terms and conditions. The appointments were made in response to a notification issued by the Higher Education Department inviting applications for temporary academic arrangements in various colleges. The petitioners continued in their positions beyond the initial academic session due to subsequent government orders and court directions.
Finding of the Court:
The court held that the petitioners' appointments were purely temporary and contractual, limited to the academic session. The court relied on precedents established in cases such as Parshotam Lal Dhingra Versus Union of India and Satish Chandra Anand versus Union of India, which held that termination of contractual employment under the terms of the contract or rules does not attract the provisions of Article 311 of the Constitution of India, as it is not a case of dismissal or removal from service or reduction in rank.
Issues: 1. Whether the petitioners, who were appointed on an ad-hoc basis for an academic session, have a right to regularisation of their services? 2. Whether the cut-off date of 29th December 1988, specified in Government Order No: 1220-GAD of 1989 for regularisation of ad-hoc appointees, is arbitrary and violative of Article 14 of the Constitution of India?
Ratio Decidendi: 1. Regularisation of ad-hoc appointments cannot be claimed as a right, as it would amount to backdoor entry into public employment, bypassing the established selection process and merit-based recruitment. 2. The cut-off date of 29th December 1988 in Government Order No: 1220-GAD of 1989 is not arbitrary, as it was intended to regularise ad-hoc appointments made prior to that date and clear the backlog of pending regular appointments.
Final Decision: The writ petition filed by the petitioners was dismissed, and the interim directions passed by the court earlier were vacated. The petitioners were directed to fulfill the undertaking given by them and refund the amounts released to them on furnishing the undertaking.
1. As agreed to by the learned counsel for the parties, the matter is being disposed of at the very admission stage.
2. The back-drop of the facts which have given rise to the present petition in brief are that pending selection by the Public Service Commission on the post of Lecturers in various disciplines having fallen vacant in the Higher Education Department, an advertisement notice was issued, inviting applications from the permanent residents of the Jammu and Kashmir State for making academic arrangements against short term vacancies of Lecturers in the State Academic Colleges of J&K State for academic session 1989 (Winter zone Colleges) and 1989-90 for summer zone colleges in various subjects including Math, History, Political Science and Hindi.
3. The advertisement notice further provided that the candidates intending to apply must be post graduate in the subject with a minimum 55% marks and should not be more than 35 years of age as on 1.1.1989. The applications alongwith attested copies of all testimonial were to be submitted latest by 3rd March 1989. The advertisement notice issued by the Information Department under No:INF/JKAD-4263 dated 16.2.1989 interalia stipulated that the candidates who had worked on adhoc basis as college Lecturers for two academic sessions should attach experience certificates from the respective colleges.
4. In response to the advertisement notice, the petitioners also applied and came to be appointed as Lecturers vide Government order No: 137-HE1989 dated 25.4.1989 subject to the following conditions:-
"........... .The appointment of each candidate shall subsist for a period of 89 days or till post is filled under rules or till the original incumbent rejoins for duty or till end of current academic session whichever may happen earlier :-
The candidates shall have no claim for permanent adjustment in the Department on account of this temporary appointment/ arrangement. They shall report for duty to the Principal of the College within 15 days positively failing which alternative arrangement shall be made by this Department and their appointment shall be deemed to have been cancelled. Further the adhoc appointment of each candidate shall terminate automatically on completing the instant term and their shall be no need of relieving order...............".
The petitioners figure at serial No.4,2,5 and 6 respectively in the annexure to the said order.
5. The language of the order thus clearly indicates that the engagement of the petitioners and others have been made purely on temporary basis for the academic session and thus amounts a contractual engagement for the academic session on the terms and conditions as spelt out in the said order. In the meantime, the said posts were advertised by the Public Service Commission in response to the requisition made by the Higher Education Department vide Letter No: Edu-Coll/PSC-4/Math/ 88 dated 31.1.1989, No. Edu-Coll/PSC-Penal/Hist/85 dated 27.3.1989 and Letter No. Edu-CoIl/PSC-8/Pol.Sc/Req dated 27.3.1989 and seem to have been filled by the Government on the recommendations of the Public Service Commission vide Government order No:389-HE of 1991 dated 26.9.1991 (Political Science), Government Order No: 403-HE of 1991 dated 7.10.1991 (Math).
6. It may be noted that though subject of Hindi was started in the Kupwara College in the year 1988, but subsequently no student had opted for the said subject and as such, no candidate was posted as Lecturer against the said post of Lecturer against the said post in Kupwara College.
7. Since the selection process had taken some time, the Government in the meantime again came out with the Government Order No:383/HE of 1989 dated 26.10.1989, whereunder sanction was further accorded to the appointment of candidates as Lecturers in Government Degree College, Kupwara purely on temporary basis as an academic arrangement in the subject against the said vacancies. However, prior to the
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