Himachal Singh vs State of J&K & 11 Ors.

These two Letters Patent Appeals are directed against the judgment of a Single Judge of this Court dated 341989 by which Writ Petition No.

5C6 of 1987 has been allowed and the appointments of the appellants herein as Veterinary Assistants and Store Keeper quashed.

The facts relevant for the disposal of these appeals may be briefly stated thus.

Respondents No. 5 to 9 filed the aforementioned writ petition questioning the adhoc promotions of the appellants in Letters Patent Appeal No.

40 of 1989 as Veterinary Assistants and appellant in L.P.A. No. 35 of 1989 as Storekeeper. The grievance of the writ petitioners was that even

though they were also working as Live Stock Assistants in the Animal Husbandry Department and were senior to the appellants herein, yet

contrary to Articles 14 and 16 of the Constitution of India and the Rules regulating their serviceconditions, the appellants had been promoted on

adhoc basis as Veterinary Assistants and Storekeeper respectively, which promotions had been continued for years together without any reason or

justification, thereby depriving the writ petitioners of their valuable right of consideration for appointment to the said posts.

In the counter affidavit filed to the writ petition, respondents 1 to 4 set up a specific case to the effect that the appellants herein had not been

promoted substantively and that the Departmental Promotion Committee (for short hereinafter referred to as D.P.C.) had yet to be convened for

making such promotions to the posts in question.

The appellants also raised a similar plea in their counteraffidavits and Claimed that their appointments had been made in public interest and in the

interest of administration and that the said arrangement being subject to confirmation by the D.P.C. no fault could be found with the same.

On the above pleadings, the learned Single Judge vide judgment and order impugned held thus:

It is not disputed that the respondents 5 to 8 are even now continuing to hold post on adhoc basis, temporary or officiating promotions, (emphasis

supplied)

It is shocking to note that respondents 1 to 4 have not filed up the posts by substantive promotions as is required under rules and have continued

the aforesaid respondents to hold the post on officiating, adhoc and temporary promotions against the rules."" XXXXXXXXXXXX

As the respondents 5 to 8 are held to have been promoted in violation of the provisions of service rules as contained in subrule (4) of rule 15, their

promotion cannot be upheld particularly when the same has not been continued after the statutory time prescribed under the aforesaid subrule (4)

or they were substantively promoted to the aforesaid post.

In consequence of the aforesaid finding, the learned Single Judge quashed the promotions of the appellants herein with the direction to respondents

1 to 4 to full up the vacancies by substantive promotion from amongst the eligible persons including the petitioners and the appellants in these

appeals. The present appeals are directed against the aforesaid judgment of learned Single Judge.

We have heard the learned counsel for the parties and perused the record.

M/s S.A.Salaria and D.C. Raina, learned counsel appearing for the appellants in the two appeals have contended that the appellants were not

temporary or adhoc promotees as held by the learned Single Judge. Both of them have placed reliance upon copies of two orders, one passed by

the Chief Animal Husbandry Officer, Udhampur dated 18111992 and the other by Chief Animal Husbandry Officer, Jammu dated 3 1983, in

support of their contention that the appellants had been declared Quasipermanent in terms of Jammu and Kashmir Civil Services (Temporary

Service) Rules, 1951. They have further submitted that these orders had not been challenged by the writ petitioners with the result that the same

had attained finality. It was argued that in view of the orders, the learned Single Judge was in error in holding that the appellants continued to be

adhoc promotees.

Mr. P.S. Dutta, learned counsel appearing for the respondents/ writ petitioners has, however, submitted that the aforesaid two orders relied

upon by the appellants in the present appeals were never referred to or relied upon before the learned Single Judge and, therefore, the same could

not be allowed to be produced or relied upon at this stage. He has further submitted that bad these orders been produced before the learned

Single Judge, his clients would have had an opportunity to controvert the geniuses and/or the validity of the same by filing an appropriate rejoinder.

He submits that he cannot be taken by surprise by the appellants by bringing on record any document at this stage, which he had no opportunity to

meet.

We find considerable force in the submission made by Mr. Dutta. The appellants have indeed tried to set up a case in the present appeals,

which was never set up by them before the learned Single Judge. We have briefly referred earlier to the case set up by the state and the other

official respondents before the learned Single Judge including the appellants herein. The plea raised by them was that the promotion given to the

appellants was an officiating and adhoc arrangement ordered in the interest of administration and that since the said arrangement was subject to

confirmation by the D.C.P., the same did not provide any cause to any one of the writ petitioners to make a grievance against the same. It is fruitful

at this stage to refer to the averments made in the counteraffidavit by respondents 1 to 4 where they stated thus ;

That in answer to para 4 of the petition, as aforesaid the Respondents No. 5 to 8 have not been promoted substantively giving any cause of action

to the petitioners. The D.P.C. as has yet to be convened for making substantive promotions on the posts in question. Mere conferment of

officiating promotion neither gives any cause action for invoking the writ jurisdiction, provided substantial infringement of any of the rights have

been accrued.

Appellant No 1 in Letters Patent Appeal No. 40 of 1989 while adopting the averments made by respondents 1 to 4 in para No. 4 of their

counteraffidavit urged that the said appellant had been asked to work in public interest and in the interest of administration on the post of Vetinary

Assistants.

To the same effect was the reply submitted by appellant No. 2 Abdul Aziz, who also similarly adopted the reply given by the State in the

aforesaid para No 4 of his counter and urged that his appointment and continuance against the higher post was in public interest and in the interest

of administration subject to confirmation of the said arrangement by the D.P.C. AppellantHimachal Singh in Letters Patent Appeal No. 35 of 1989

too raised a similar defence and urged that the order of his promotion was made for smooth running and functioning of the Department.

From the pleadings of the parties, it is, therefore, apparent that the case set up before the learned Single Judge was that the promotions of the

appellants were temporary and subject to confirmation by the D.P.C. and also that the said promotions did not violate any right of the writ

petitioners, as the same were only adhoc in nature. It was never urged before the learned Single Judge either in the counteraffidavit or even orally

that the appellants had been declared Quasipermanent and, therefore, the said declaration had converted into a permanent feature, what was

otherwise a temporary arrangement. Having failed to justify the adhoc arrangement perpetuated for a long period contrary to the relevant rules, the

appellants have in the present appeals shifted their ground and set up a case never set up by them at any earlier stage.

Mr. S.A. Salaria, learned counsel appearing for the appellants when confronted with this situation and the apparent in consistency is the stands

taken by his clients made a feeble attempt to suggest that the order declaring his clients Quasipermanent had been shown to the learned Single

Judge at the time of arguments, but has not been noticed by His Lordship. We regret our inability to agree to this line of reasoning. We do not find

even a whisper either in the pleadings filed before the learned Single Judge or the judgment impugned about the issue of the orders in question let

alone the same being set up as a defence to the writ petition. We see no reason why the learned Single Judge would have ignored the orders now

relied upon by the appellants, had the same actually been produced before His Lordship. The record of the writ petition, which we have carefully

examined also does not bear any copy of any such order nor any evidence of the same ever having been brought to the notice of the learned Single

Judge.

That apart we cannot lose sight of the fact that the respondentState including the Chief Animal Husbandry Officer, who is said to have issued

the sale declarations pf Quasipermanence have not owned the same in the counteraffidavit filed to the writ petition. Mr. Dutta, is. therefore,

justified in arguing that even the genuineness of the declarations relied upon by the appellants are in serious doubt for otherwise there is no reason

why the officer, who is alleged to have issued the same would have on affidavit controverted the same and set up a case contrary to the said

declaration to urge that the promotion of the appellants was only a temporary affair.

Be that as it may, we are not inclined to allow the appellants to set up a case at the appellate stage, which they never set up before the learned

Single Judge, particularly when allowing such a course of action would prejudice the writ petitioners, who could have controverted the genuineness

of the said declarations or questioned their validity in time bad the same been set up in defence.

Mr. Salaria then argued that even if the appellants were treated to have continued as temporary or adhoc promotees on account of their length

of service in the higher position, they would be entitled to the benefit of being treated as permanently appointed.

We do not find any merit even in this submission of Mr. Salaria. Admittedly no D.P.C. was ever constituted for the purpose of determining the

suitability of the writ petitioners and the appellants herein for promotion to the higher post on adhoc basis. In other words, the writ petitioners did

not have the opportunity to even stake their Claim for promotion nor were their cases considered. An arrangement made without consideration of

the Claims of all eligible employees was perse discriminatory, particularly when the said arrangement was sought to be continued for years together

in total violation of Rule 25 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. Rule 23(4) of the said

rules read thus:

''25(4) where is necessary in the public interest owing to an emergency which has arisen and could not have been foreseen, to fill immediately a

vacancy by promotion from a lower category, and where promotion in accordance with these rules would involve undue delay or expenditure or

cause administrative inconvience, the appointing authority may promote a person otherwise then in accordance with these rules temporarily until a

person is promoted in accordance with these rules, but such temporary promotion shall in no case exceed three months on each occasion"".

The language employed in the rule leaves no manner of doubt, that a temporary promotion, is pormissible only in the following circumstances

(i) The promotion must be in public interest,

(ii)

(ii) It must become necessary owing to an unforeseen emergency to make such a promotion.

(iii) The making of promotion in accordance with the Rules must involve undue delay, administrative inconvenience or expenditure, and

(iv) The temporary promotion must not on each occasion go beyond a period of 3 months.

It is only when the above conditions prescribed by Rule 25(4) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal)

Rules, 1956 are satisfied that, a temporary promotion can be validly made till such time the appointing authority promotes a person substantively in

accordance with the Rules. It, therefore, follows that any promotion, made, or continued, in violation of the Rule, would be liable to be set aside by

the court. To the same effect the judgment of the Single bench of this court in writ petition No. 162 of 1978 titled Ajit Kumar V/s The State of

J&K and others decided on 28.3.1989. reliance whereupon has been correctly placed by the learned Single Judge, while deciding the writ

petition, in question. We are, therefore, of the view, that the temporary promotion of the appellants cannot be given a stamp of approval by us,

particularly when we find that the requirements for making such promotions initially have not been satisfied.

Reliance placed by Mr. Salaria upon the judgment of their Lordships of the Supreme Court in case State of Haryana and others vs. Pyara

Singh and others (Supra) is also in our opinion of no avail to him. The said judgment is clearly distinguishable. Their Lordships were dealing in that

case with a situation where the first appointments had been made without a reference to the Public Service Commission or the Subordinate

Services Selection Board and without adhering to the Employment Exchange requirements. Even when the Court in the said case was dealing with

the regularization of employees in accordance with the Government orders issued by the Government of Haryana, their Lordships struck a note of

caution against hasty and wholesome regularization orders by the Courts. Their Lordships observed thus :

As would be evident from the observations made and directions given in the above two cases, the court must, while giving such directions, act

with due care and caution. It must first ascertain the relevant facts, and must be cognizant of the several situations and eventualities that may arise

on account of such directions. A practical and pragmatic view has to be taken, inasmuch as every such direction not only tells upon the public

exchequer but also has the effect of increasing the cadre strength of a particular service, class or category. Now, take directions given in the

judgment under appeal. Apart from the fact the High Court was not right as we shall presently demonstrate in holding that the several conditions

imposed by the two Governments in their respective orders relating to regularization are arbitrary not valid and justified the High Court acted rather

hastily in directing wholesome regularization of all such persons who have put in one year's service and that too unconditionally. We may venture to

point out the several problems that will arise if such directions become the norm:

(AIR 1992 S.C. 2136)

Apart from the, fact that the power to direct regularization of an abhoc employee has to be sparingly used, the material ""difference in the two

situations, namely, one before their Lordships of the Supreme Court and the other before us is that in the former, there was no grievance made by

any individual complaining infraction of the guarantees contained in Articles 14 and 16 of the Constitution of India, whereas in the instant case, the

writ petitioners had not only agitated against the continuance of the adhoc promotions, but had finally approached this Court by way of a writ

petition challenging5 the same we accordingly feel that the judgment of their Lordships in Piara Singh's case has no application to a situation like the

one before us and we would not be justified in applying the ratio in Piara Singh's case, inderogation of the rights of the appellants.

Equally misplaced is the reliance by Mr. Salaria upon the judgment of their Lordships in A.K. Jain and others v/s Union of India reported in

A.I.R.1987 S.C. Case (Supplement) 497. The said judgment also in our opinion has no opinion to this case for practically the same reasons as

stated in regard to Piara Singh's case. In the A.K. Jain case their Lordships were dealing with a situation where the services of adhoc appointees

had been terminated. It was not a case where the Court was dealing with the question of validity of a promotion made to the prejudice of other

employee, who even when eligible had not been considered. The judgment in A.K. Jain's case was followed by a Division Sehch of this Court in

Dr. Narinder Mohan Vs. The Stale and other 1993 K.LJ. 572. reliance whereupon has also been placed by Mr. Salaria. The judgment in

Narindcr Mohan's case was, however, upset by the Apex .Court in civil Appeals No. 72495593 titled Jammu and Kashmir Public Service

Commission and others Vs. Dr. Narinder Mohan and others. In the said judgment their Lordships while dealing with the judgment in Dr. A.K.

Jain's case observed thus :

This Court in Dr. A.K. Jain v. Union of India (1985 (1) SCR 335) gave directions under Art. 142 to regularize the services of the ad hoc doctors

appointed on or before October 1.1984. It is a direction under Article

142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the

direction to the PSC to consider the cases of the respondents. Article 142power is conferred only this court.

'Again their Lordships while dealing with Piara Singh's case observed thus :

In State of Haryana V. Piara Singh. 1992 SCC 118 at 152, this Court noted that the normal rule is recruitment through the prescribed agency but

due to administrative exigencies, an adhoc or temporary appointments may be made. In such situation, this Court held that efforts should always be

made to replace such adhoc or temporary employees by regularly selected employees, as early as possible. The temporary employees also would

get liberty to compete alongwith others for regular selection but if he is not selected he must give way to the regularly selected candidates.

Appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc or temporary employee.

Adhoc or temporary employee, should be replaced by another adhoc or temporary employee. He must be replaced only by regularly selected

employee. The adhoe appointment should be a device to circumvent the rule of reservation. If a temporary or adhoc employee continued for a

fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service

record is satisfactory and his appointment does not run counter to the reservation policy of the State. It is to be remembered that in that case, the

appointments are only to Class III or ClassTV posts and the selection made was by subordinate selection committee. Therefore, this Court did not

appear to have intended to lay down as a general rule that in very category of adhoc appointment, if the adhoc appointee continued for long

period, the rules of recruitment should be relaxed and the appointment by regularization be made."" (Emphasis supplied)

The above observation provide a complete answer to Mr. Salaria's argument in so far as regularization of the appellants are concerned. We

accordingly find it difficult to accept Mr. Salaria's contention that the long tenure of the appellants against the higher posts on adhoc basis should

get a stamp of legitimacy and approval from this Court and should be declared to be regular in nature.

It was then contended on behalf of the appellants that the learned Single Judge ought not to have quashed the appointments and ought to have

directed the constitution of the D.P.C. for consideration of the case of all eligible within a given period. The appellants according to M/S Salaria

and Raina could have been allowed to continue till such time as the D.P.C. would meet and take a final decision. Mr. Dutta was agreeable to this

suggestion provided a timebound schedule was fixed for the finalization of the D.P.C's consideration of all the eligible's and the continuance of the

appellants was limited to a definite period fixed by this Court.

We have considered this submission and are of the view that removal of the appellants from the posts presently held by them on adhoc basis

would not immediately benefit the writ petitioners or the Government. It may at best give to the writ petitioners the satisfaction of bringing to end an

illegal arrangement, which had continued for so long. without giving any corresponding benefit to them. It may also create some administrative

problems within the department in its day to day functioning. We are not, therefore, averse to this arrangement being made.

24 We accordingly dismiss the appeals, but direct that the appellants herein shall continue against the posts of Veterinary Assistants/ Store keeper,

to which they were appointed on adhoc basis for a further period of three months from the date of this judgment. Upon the expiry of the said

period, the said adhoc arrangement shall automatically cease. We further direct that the respondent No 1 to 4 shall take steps to consituate a

proper D.P.C. to consider the cases of all the eligible employees for promotion to the post of Veterinary Assistants. This should be done by the

respondents as far as possible within a period of three months to avoid a situation in which the vacancies caused on account of the termination of

the adhoc arrangement may remain vacant to prejudice of the department.

C.M.P. Nos. 1077 and 1159 of 1989 shall also stand dismissed and the stay granted on 22.5.1989 shall stand vacated. In the circumstances

of the cases, the parties shall bear their own costs.