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2007 Supreme(J&K) 66
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Mansoor Ahmad Mir, J.
Shaheena Firdous & Anr. - Appellant
Versus
State & Ors. - Respondent
SWP No. 531/1995
Decided On : 08 May, 2007
Advocate For Appellant: M.A. Qayoom
Advocate For Respondent: Jehangir Iqbal Ganai
Appointments made in violation of the prescribed rules do not confer any right or title to the appointee, and such appointments are considered illegal.
Headnote:
Illegal Appointment - Teacher's Post - Government Order No.462-EDU of 1991 - The court discussed the Government Order No.462-EDU of 1991, which outlined the procedure for filling migrant vacancies in the Education Department. It emphasized the requirement for appointments to be made only by inviting applications, with preference given to candidates with teaching experience and specific qualifications. The court highlighted that appointments made in violation of these rules do not create any right or interest in favor of the appointee.
Fact of the Case:
The petitioner was appointed as a teacher against a migrant vacancy, but the appointment was found to be illegal as it was made in violation of the government order. The petitioner sought regularization of her services based on a Full Bench Judgment, while the respondents sought to cancel the appointment and take action against the erring officer.
Finding of the Court:
The court found that the appointment of the petitioner was illegal and that the administrative department had rightly directed the cancellation of the appointment order and action against the erring officer. It dismissed both writ petitions and connected CMP(s) based on the illegal appointment.
Issues: The main issue revolved around the legality of the petitioner's appointment as a teacher against a migrant vacancy and the subsequent actions taken by the administrative department to cancel the appointment.
Ratio Decidendi: The court emphasized that appointments made in violation of the rules outlined in Government Order No.462-EDU of 1991 do not confer any right or title to the appointee. It cited several precedents to support the principle that appointments made in de hors of rules are illegal and do not create any right to continue in service.
Final Decision: Both writ petitions were dismissed, and the interim directions passed were vacated. The court upheld the administrative department's decision to cancel the illegal appointment and take action against the erring officer.
2. Writ petitioner filed SWP No.53 1/1995 in this Court with the prayer that respondents be directed to allow the petitioner to hold the post of teacher without break till Shama Dhar rejoins her duties and also prayed that respondents be restrained from terminating the services of the petitioner on the grounds taken in the writ petition, which can be aptly and precisely enumerated at under;-
3. It is averred in the writ petition that due to prevailing circumstances a section of the population migrated from Kashmir Valley. In order to overcome the difficulties and to gear up the Government machinery and to make educational institutions functional, State Government made a policy decision, whereby it was decided to fill-up the posts rendered vacant because of migration. State Government- respondents also framed rules for filling up the vacancies. The posts came to be filled up and candidates who came to be appointed against the said posts are holding the position from 1990 without any break.
4. Petitioner also moved so many applications and came to be temporarily appointed as teacher vide order No.ZB/90-91 dated 7th April, 1995 for a period of 89 days. Petitioner joined Primary School Sirhama on 10th April, 1995 and is performing duties.
5. The grievance of the petitioner is that respondents are bent upon to terminate her services in order to select and appoint blue eyed person against the said post.
6. Respondents have resisted the petition. It is profitable to reproduce paras-2 and 5 of the preliminary objections herein, which reads as under:-
"2. That the petitioner had no right as her engagement as a -- substitute against migrant vacancy is against law because ZEO has no competence/authority/jurisdiction under rules to make temporary engagement or leave arrangement for the post of teacher. It may be mentioned that the ZEO namely Bashir Ahmed who has fraudulently engaged the petitioner, was placed under suspension for his various acts of omissions and commissions and has now retired. Therefore, the order upon which petitioner relies is not maintainable under law, as such, present writ petition is liable to be dismissed.
5. That the Govt. had imposed Ban in 1994 for engagement of any candidate against migrant vacancies. Therefore, incompetent person i.e. ZEO can not make engagement in violation of the procedure prescribed by the Government. As such no right is created in her favour. Therefore, present writ petition is misconceived and is liable to be dismissed."
7. This Court passed interim direction on 14tn July, 1995, which reads as under:
"Notice. Notice in the CMP also. In the meanwhile subject to the objections of the otherside the respondents are directed to continue the petitioner if he is working as on date till the migrant rejoins his duty. She shall be paid the salary."
8. During the pendency of the writ petition, petitioner has filed a contempt petition No.99/2000 which came to be disposed of vide order dated 31sl May, 2000.
9. Petitioner has also filed CMP No. 1725/2001 for directing respondents to release the salary. This court disposed of the said CMP vide order dated 9th December, 2002. It is profitable to reproduce operative part of the said order herein, which reads as under:
"In the circumstances it is obvious that if the work has been taken from petitioner as teacher she has to be paid for that. It is not as if she is doing `beggar. If the Respondents had any doubt about the genuineness of appointment of the petitioner and her entitlement to work thereafter, the respondents should have taken steps thereto. Respondents in fact have continued here all along for last about 8 long years without any murmer or interruption. Now at this stage they cannot turn around to refuse her salary on one or the other pretext, when she has infact worked and discharged her duties
