Abdul Majid Wani and Anr. vs State and other

The petitioners by medium of this writ petition challenge the Government order No. 806Agri of 1982, discharging them from the Service in

pursuance of rule 21 (1) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules. 1956, (hereinafter for short as

appeal Rules)

The perusal of writ petition reveals that the petitioners were appointed by the Government as the Block Development Officers on temporary

basis. They were so appointed on probation for two years and their continuance on regular temporary basis thereafter was subject to their

successful completion of probationary period. They had hardly served as such for three months when the order impugned was passed Allegedly,

the order of their appointment was issued with the prior approval of the then Chief Minister late Sheikh Mohammad Abdullah, and the then

Agriculture Minister Shri. Bhaderwahi was not somehow happy with the said order, and therefore, he managed their discharge from the service

soon after the death of the former. According to them, the order impugned could not be passed at the whim and caprice of the appointing

authority, more so, when they had not completed the probationary period of their service. The discretion under rule 21 (1) of the appeal Rules was

to be exercised on some material, as otherwise it would amount to misuse and unbirdled exercise of power which was against the rule of law and

the principles of natural justice.

3 In the counter affidavit filed on behalf of respondents, it is admitted that the petitioners were appointed temporarily and the reliance has been

placed on rule 21 (1) (b) of the Appeal Rules for their discharge from service.

I have heard the learned counsel for the parties. The learned Additional Advocate General at the time of hearing also produced the relevant

record pertaining to appointment of the Block Development Officers including the petitioners. From the perusal of the said record, it transpires that

the concerned Secretary to Government had proposed that the vacant posts of the Block Development Officers should be referred to the Public

Service Commission for selection. The matter was discussed by the concerned Minister and the Chief Secretary with the Chief Minister and it was

approved that three persons including the two petitioners shall be appointed on regular basis. This is clear from Note : 69 of the concerned file

which is dated : 2161982. The order of appointment of the petitioners was issued accordingly. In this regard, the memorandum for submission to

the Cabinet is reproduced as below, for ready reference:

Government Of Jammu And Kashmir Agriculture Production Department

Memorandum for submission to the Cabinet

Subject: Appointment of Black Development Officers.

As a result of setting up of new blocks in CD organization during the year 198182 a number of posts of Block Development Officers, having been

created for the purpose, were to be filled up immediately. According to the recruitment rules 25% vacancies in Block Development Officer cadre

are required to be filled up by direct recruitment and 75% from amongst various sources either by promotion or by transfer. The Administrative

Department made temporary arrangements by transfer from various categories of officials and by promotion from eligible sources to man these

posts. 25 percent vacancies of Block Development Officers under direct recruitment quota were referred to the Public Service Commission. In the

meanwhile the matter regarding the adhoc appointment of some of the candidates was, however, discussed with the Chief Minister by the

Agriculture Production Commissioner and it was suggested that it will not be appropriate to make any adhoc appointment particularly when the

post have already been referred to the Public Service Commission and that after the recommendations are received from them it will be very

difficult to discharge the adhoc appointees in case they are not found suitable by the Public Service Commission. The Chief Minister agreed and

desired that the posts may not be filled up on adhoc basis. However, with the constitution of Kashmir General Service it was decided that the

selection of candidates for appointment to the posts of the Block Development officers will not be made as those posts have already been included

in the Direct Recruitment quota of Proposed service. A reference was accordingly made to the Public Service Commission.

The file was subsequently submitted to the Agriculture Minister/Chief Minister in view of a number of appointments having been received from

different quarters for appointment as Block Development Officers. Even though the Secretary Agriculture reiterated his suggestion that adhoc

appointments may not be resorted to as appointments are being made through Public Service Commission on regular basis shortly. However the

case has been discussed by the Agriculture Minister with the Chief Minister when the Chief Secretary was also present and it has been approved

that the following persons may be appointed as Block Development Officers on probation for 2 years and their continuance on regular/temporary

basis will be subject to their successful completion of probation period (copy of Government order enclosed).

i) Shri Abdul Majid Wani S/o Shri Abdul Salam Wani R/o Banigam Shalimar, Srinagar.

ii) Shri Riaz Ahmad Zargar S/o Shri Ghulam Rasool Nishat R/o Kishtwar.

iii) Reshi Kumar Gupta S/o Shri Lakmi Chand Gupta, R/o Kishtwar.

The Secretary to Government, Agriculture production Department accordingly submits the case for confirmation of the action taken in issuing

orders without reference to the Public Service Commission.

Sd/

Commissioner & Secretary to

Government Agriculture Production Deptt.

Allegedly, after the death of the then Chief Minister, the matter was placed in .the Cabinet for confirmation of the said orders of appointment

without reference to the Public Service Commission. In this regard, t he Note 85 on the file may be reproduced, as under:

Vide Government order No. 563. Agri of 1982 dated: 2561982 S / Shri Abdul Majeed Bhat, Rayaz Ahmad Zargar and Reshi Kumar Gupta

were appointed as Block Development officers on regular temporary basis subject to their successful completion of two years probationary

period. This was done with the approval of Chief Minister available at para 65 NF. The posting orders of the 3 Block Development officers were

issued and presently they are working in their respective blocks. Since the appointments were ordered without obtaining the clearance from the

Public Service Commission, a memorandum was submitted to the cabinet for confirming the action taken by the Agriculture Production

Department in issuing three appointment orders. The cabinet have vide decision No. 318 dated 25.8.1982 ordered that the appointments to the

vacant posts be made in the normal course by reference to the Public Service Commission. This clearly indicates that the appointment orders

issued by withdrawn forthwith. The issue was discussed by the Agriculture Production commissioner with the Agriculture Minister on 1.9.1982.

The Agriculture Minister mentioned that he will discuss the case with the Chief Minister. Perhaps, it has not so far been possible for the Agriculture

Minister to discuss the case with the Chief Minister. There has to be no delay in implementation of the cabinet decision. Orders are therefore,

solicited whether the orders in the light of Cabinet decision be issued or we may await till the matters is further discussed by Agriculture Minister

with the Chief Minister"".

The cabinet Decision No. 318 dated 25.8.1982 mentioned above is reproduced below:

Ordered that the appointment to the vacant posts be made by reference to the Public Service Commission.

This cabinet decision was constructed by the concerned Department to include the order of discharge of the petitioners, and consequently, the

order impugned was passed under rule |21 (l) (b) of the Appeal Rules, as approved by the Minister concerned. Thereafter, the Secretary

concerned submitted the following note to the Minister concerned:

The Agriculture Minister will kindly recall that we had some time back appointed three candidates namely S,/Shri Abdul Majid Wani, Rias

Ahmad Zarger and Reshi Kumar Gupta as Block Development Officers, The orders were issued in anticipation of the cabinet approval but with

the prior approval of the then Agriculture Minister and the Late Chief Minister, This was inspite of the fact that I had expressed my reservations

about the appointment of the candidates on adhoc basis as subsequently if the PSC do not select them the complicacy would arise in continuing the

candidates appointed on adhoc basis. In this connection, the note at paras 62 to 65 may kindly be perused. The three candidates were however

appointed on regular basis and not on adhoc basis as per orders of the then Agriculture Minister who had discussed the case with the Late Chief

Minister (refer para 68 of the notes ante). Thereafter the memorandum available at page 111112 of c.f submitted to the Cabinet for confirmation of

the action taken but they ordered vide their decision No. 318 dated : 25th August 1982 (page 113 of) that the appointment to the vacant posts be

made in the normal course by reference to the Public Service Commission. Toe .three candidates were accordingly discharged as per Government

order dated 8th September 1982 available on page 115 of Subsequently, however, these three candidates filed a writ petition in the High Court

who got the stay orders directing that in case the petitioners have not been relieved pursuant to the order of discharge, that order shall not be given

effect till further order from this court. This was discussed with the Agriculture Minister and the three candidates who were not relieved till then are

still continuing on their present posts. We have meanwhile received a notice from the court to defend the writ petition. It is now submitted for

orders as to whether we should defend the orders of the discharge of the candidates or we may put up the case again to the Cabinet for allowing

the three candidates to continue and rescinded the orders of their discharge. On overall consideration I feel that after having their appointment

orders issued with the approval ""of the then Agriculture Minister and the Late Chief Minister, it is very embarrassing to discharge the three

candidates at this stage.

Sd/ COMMR. & Secy. AGRICULTURE

The matter appears to have been resubmitted to the Cabinet for reconsideration and the memo prepared in this behalf is reproduced as under,

for ready reference :

Government Of Jammu And Kashmir Agriculture Production Department

Item NO. 6

Memorandum For Submission To The Cabinet

Subject: Appointment of Block Development Officers. With the approval of the late Chief Minister the following candidates were appointed as

Block Development Officers in the grade of Rs. 8751400 on probation for 2 years vide Government order No. 563 Agri of 1982 dated:

2661982. These appointments were made in connection with the setting up of the new blocks:

Shri Abdul Majid Wani, BA S/o Abdul Salam Wani R/o Banigam Shalimar Srinagar.

Shri Reyaz Ahmad 'Zargar, S/o Shri Ghulam Rasool Nishat R/o Kishtwar.

Shri Reshi Kumar Gupta BA.LLB S/o Shri Lakmi Chand Gupta R/o Kishtwar.

Since the appointments were ordered in relaxation of clearance by the Public Service Commission the case was referred to the Cabinet for formal

confirmation of the action taken by the Agriculture Production Department ( Copy of memorandum enclosed ). The cabinet vide decision No. 318

dated 25882 ordered that the appointment to the vacant posts be made in the normal course by reference to the Public Service Commission.

Accordingly, vide Govt. order, No. 806Agri of 1982 dated 391982 the probation period of the Block Development Offices was confirmed in

pursuance of rule 21 (1) of the J&K Civil Service (Gasification, Control and Appeal) rules 1956 and they were discharged from the service. S/Shri

Abdul Majid Wani and Reshi Kumar Gupta obtained a stay order from the Hon'ble High Court to the effect that in case the petitioners have not

been relieved pursuance to Government order of discharge, that order shall not given effect to till further orders from the Court. Since the Block

Development Officers had not been relieved from their posts formally they are continuing on their present posts and operation of orders was kept

in abeyance. The matter was further examined in the Agriculture Production Department. The Department feels that after having their appointment

orders issued with the approval of the then Agriculture Minister and the late Chief Minister, it is embarrassing to discharge the three candidates at

this stage.

The Commissioner and Secretary to Government Agriculture Production Department with the approval of Agriculture Minister submits the case for

reconsideration of the Cabinet

Sd/ (Sheikh Ghulam Rasool)

Commissioner & Secretary To Government Agriculture Production Department.

From the perusal of above cited memos and order it is clear that petitioners were appointed by the late Chief Minister on temporary basis and

not on adhoc basis, and that too, without reference to the Public Service Commission Now, the question is whether the Chief Minister had the

power to make such appointment without reference to the Public Service Commission In item No. 27 of the third schedule of the Jammu and

Kashmir Government Business Rules, which have statutory force, it has been provided that the Chief Minister has power to relax the rules of

referring a matter to the Public Service Commission. He has such power and may decide not to refer any matter to such Commission, though

under rules such reference may be necessary. Even, the Government has such power of relaxation as provided in Section 5 of the Appeal rules

itself Mr. Mufti the learned A.A G. fairly arid rightly so, conceded this position of law When the Chief Minister appointed the petitioners on

temporary basis against the advice of the concerned department, it would clearly show that he impliedly relaxed the rule of referring such posts to

the Public Service Commission, for selection. He has exercised a power which was vested in him, in the 'Business Rule' mentioned above. The

department had suggested that the posts be referred to the Public Service Commission, but the Chief Minister did not agree with them and made

the appointments on temporary basis without such reference. That being so. there has no need to get the action of the Chief Minister confirmed by

the Cabinet The posts could be referred to Public Service Commission before making of appointments, and not thereafter. Once appointments

were made under the orders, of the Chief Minister, Who was under rules, competent to exercise such power of relaxing of rules the question of

referring the matter to the Cabinet for referring the posts to the Public Service Commission, in my opinion, was without legal authority. Neither

could the matter be referred to the Cabinet for confirmation of the order passed by the Chief Minister and nor could the posts be referred to Public

Service Commission after the appointments were made thereto by the competent authority after relaxing the bar of such reference. Under Schedule

3 Supra, the Chief Minister has such power, which was exercised by him in favour of the petitioners. The reference to the Cabinet for confirmation

of the action of the Chief Minister was, therefore, uncalled for and unnecessary. Once the Chief Minister had such power, which he had legally

exercised, the question of getting it confirmed by the Cabinet does not arise. Once the matter of appointment of the petitioners was referred to the

Chief Minister, it was clear that relaxation of rules was sought for the purpose. Otherwise, the matter had not to go to the Chief Minister. For

reference of the vacant posts to Public Service Commission, the matter was not to be referred to the Chief Minister.

The perusal of Cabinet Decision No. 318 dated 2581982 also shows that there was no decision as to the discharge of the petitioners as such it

had only decided to refer the appointment of vacant posts to the Public Service Commission. It is not understandable as to how it has been

interpreted by the bureaucracy to; include the discharge of the petitioners from service. Once the Chief Minister had exercised a power which was

vested in him under law, it could not be undone to the detriment of the petitioners, who were the beneficiaries thereof, much less, without affording

them an opportunity of being heard. This is clear violation of principles of natural justice.

N w, the question may arise whether any appointment to the Gazetted post is permissible under law without reference to the Public Service

Commission? This too, has been settled by the Supreme Court in AIR: 1957. SC. 912, holding that such reference to the Public Service

Commission is only directory and not mandatory. The same view has been again held in 1969 (2) Supreme Court cases 240 also.

The last question is whether or not in the facts and circumstances of the case, the order impugned could be legally passed under rule 21(1) (b)

of the appeal Rules? The petitioners have been discharged from service and because they were unsuitable for any reason whatsoever, but because

they were appointed by the Chief Minister without reference of the posts to the Public Service Commission, and that order of the Chief Minister

was not allegedly, confirmed by the Cabinet. The conjoint and close reading of rules 21 and 22 of the Appeal Rules, show that a probationer can

be discharged from service without casting any stigma to him, either for want of vacancy or for unsuitability. There is no other way to discharge a

probationer, except of course, for his misconduct, and in that case he is entitled to all the' constitutional guarantees as provided in Article 311 of

the Constitution of India read with Section J26 of the Constitution of Jammu and Kashmir. It is not the case of the respondents in this case, that the

petitioners were discharged for want of vacancy, and nor is it their case that they were unsuitable Why they were discharged has not been

disclosed anywhere. It is, however, in their record, that they were discharged for nonreference of the posts to Public Service Commission. Such

order, in my opinion, could not be passed under rule 21(1) (b) of the said Rules. Even, under this rule, a probationer cannot be discharged without

any legal justification, and that too, the whim

and caprice of the appointing authority and without any material before it, as that would be violative of Article 16 of the Constitution of India. No

discretion is exercisable arbitrarily, as that would be against the principles of natural justice. In our Constitution, no authority is vested with

unbridled powers, as that would be violative of the canons of rule of law. Every rule is subject to constitutional riders and restrictions, and the

power exercised there under has to be in consonance with the constitutional guarantees as provided to the Public servants. The power under the

said rule cannot be exercised whimsically and arbitrarily. It is exercisable only on the basis of unsuitability of the probationer, or for want of

vacancy and on no other ground. The respondents have hot specifically disclosed any ground for having exercised the power under the said rule.

They appear to be under the wrong impression that such power is exercisable with arrogant arbitrariness, losing sight of the constitutional

constraints imposed on the authorities and inherent therein. If the power given under the said rule is exercised otherwise than on the ground of

unsuitability of the probationer, or for want of vacancy it will not get the protection of unassail ability, as provided therein and will be hit by the vice

of arbitrariness, attracting the provisions of Article 311 of the Constitution of India, providing for a full fledged inquiry enshrined therein. The rules

itself will become ultra virus of the constitution, if the power is exercised therein arbitrarily. As the virus of the said rule have not been specifically

challenged in this writ petition and nor argued, as such, 1 would not like to go into the constitutionality or otherwise of the same Prima facie, (he

rule itself does not appear to be unconstitutional, but has been used as such. The way and manner in which the respondents have prostituted this

power in the present case is patently arbitrary and unconstitutional and even smacks of its malafide character. Let alone the legality even the

morality has been trampled upon by the respondents while passing the order impugned. They have not respected the wishes of the dying Chief

Minister, who appointed the petitioners in his last days, and went out of way to relax the directory rules of referring the vacant posts to the Public

Service Commission. No sooner he breathed his last, then the appointment order in question was also buried. Once an only call in an act of moral

crisis. In any case, such order is not sustainable in the eye of law.

In view of the above discussion, I am of the opinion, that the order impugned is manifestly unconstitutional, invalid and without any Legal force

and merits to be set aside. I, therefore, allow the writ petition and hereby quash the Government order No. 806Agri of 1982 dated 391982, as

contained in Annexure ' I ' of the writ petition. However, no order is passed as to costs Let the file be consigned to records.