Javed Iqbal and Others vs State of J&K and Others

The case of the petitioners is that they have been appointed as Medical Assistants on stopgap basis by the Chief Medical Officer, Poonch against

the clear vacancies and as such are entitled to regularisation. Besides, seeking regularisation, they have also challenged the selection of respondents

No.6 to 10 on the ground that interview was an eyewash to accommodate their favorites.

A perusal of the photostat copies of the appointment orders issued in favour of the petitioners indicates that they were appointed between 1992

and 1994 as Medical Assistants on stopgap basis each time for a period of 30 days. One of the petitioners namely, Shabir Hussain was appointed

for 30 days even in leave vacancy as per order dated 14.9.92, but only for 30 days. Similarly, petitioner Javed Iqbal was also appointed on leave

chance, but again for 30 days only. It appears the Chief Medical Officer was aware of the fact that he was not competent to make such

appointments because under rule14 of. the J and K Civil Services (Classification, Control and Appeal) Rules, 1956, such appointments could be

made only in accordance with ruJe14 after obtaining the approval of Chief Minister in coordination which is possible only if the requirements of

said rule are satisfied. The orders indicate that Chief Medical Officer had not even informed the Director, Health Services for making such

appointment muchless his approval. These appointments are thus voidabinitio creating no right in the petitioners. So the appointments of petitioners

were not covered under any rules and therefore, the question for regularisation does not arise.

However, it is the admitted case of the petitioners that respondents No.6 to 10 have been selected by the Service Selection Board constituted

under the J and K Subordinate Service Recruitment Rules 1992 issued vide notification SRO 194 dated 18.8.92, the body constituted for making

such selections. It is admitted that the post of Medical Assistant carrying pay scale of Rs. 9501500 was to be filled only after the selection is made

in accordance with SRO 194/92. Respondents No.6 to 10 have admittedly been selected by the Service Selection Board. It is admitted by the

petitioners that they also appeared in the interview but were not selected. Having appeared in the interview they are estopped from challenging

selection in view of the law laid down in case Madan Lal Vs. State of J and K (AIR 1995 SC 1088) holding that :

In the case of Om Parkash Shukla Vs. Akhilesh Kumar Shukla, (AIR 1986 SC 1043) it has been clearly laid down by a Bench of three learned

Judges of this court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in

examination he filed a petition challenging the side examination the High Court should not have granted any relief to such a petitioner. 9. Therefore,

the result of the interview test on merits cannot be successfully challenged by a candidate who takes a chance to get selected at the said interview

and who ultimately finds himself to be unsuccessful. It is also to be kept in view of that in this petition we cannot sit as a court of appeal and try to

assess the relative merit of the concerned candidates who had been assessed at theoral interview nor can the petitioners successfully urge before us

that they were given less marks though their performance was better.

So the petitioners cannot challenge the selection of respondents No. 6 to 10.

This apart, the petitioners have not challenged the selection of respondents No.6 to 10 on any ground whatsoever. They have only stated that

interview was an eye wash. But neither they have impleaded Service Selection Board as party nor the members of Interview Committee in the

absence of which selection of respondents No.6 to 10 cannot be challenged.

Mr. Hussain next argued that in SSWP No. 210/93 decided on 5.3.93 learned Single Judge of this court has directed the respondents to treat the

writ petition as representation and decide the same according to the rules applicable for regularisation. However, this is not a decision of the case

on merit and as such not relevant. Since the petitioners have not impleaded Service Selection Board or the members of Service Selection Board,

they cannot challenge the selection of respondents No. 6 to 10. Moreover, the petitioners have not challenged the selection of private respondents

on any ground what so ever in the absence of which they have right to be appointed on being selected by the competent authority. There is no rule

muchless statutory rule in terms of which such appointments made illegally by incompetent authority can be regularised. The appointments on

stopgap basis cannot be regularised without offending Articles 14 and 16 of the Constitution as held in J and K Public Service Commission Vs.

Narinder Mohan (AIR 1994 SC 1808) wherein it has been laid down that even where rules have not been framed the executive instructions should

be in accord with Articles 14 and 16 of the Constitution. Their lordships while deprecating the tendency to offending Articles 14 and 16 held that:

The rules or instructions should be in compliance with the requirements of Article 14 and 16 of the Constitution. The procedure prescribed shall

be just, fair and reasonable. Opportunity shall be given to eligible persons by inviting application through the public notification and recruitment

should be according to the valid procedure and appointment should be of the qualified persons found fit for appointment to a post or an office

under the State."" Their lordships further held :

A little leeway to make adhoc appointment due to emergent exigencies, does not cloth the executive Govt. with power to relax the recruitment or

to regularise such appointment in order to claim such appointments to be regular or in accordance with rules. Back door adhoc appointments at the

behest of power source or otherwise and recruitment According to rules are mutually antagonistic and strange bed partners. They cannot coexist in

the same sheath. The former is in negation of fair Delay. The letter are the product of order and regularity.

So the argument that petitioners should be regularised is against law laid down by the apex court and cannot be countenanced in view of the

observations made in SWP No. 210/93.

Mr. Hussain next relied on the decision of the apex court in State of Haryana Vs. Piara Singh seeking regularisation. But the ratio of the judgement

has been explained in Narinder Mohan's case (AIR 1994 SC 1808) hold that :

In State of Haryana Vs. Piara Singh, 1992 (4) SCC 118 at 152: (1992 AIR SCW 2315), this court noted that the normal rule is recruitment

through the prescribed agency but due to administrative exigencies, an adhoc or temporary appointment may be made. In such a situation, this

Court held that efforts should always be made to replace such adhoc ortemporary employees fry 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 not be replaced by another adhoc or temporary employee. He must

be replaced only by regularly selected employee. The adhoc appointment should not be a device to circumbent the rule of reservation. If a

temporary or adhoc employee continued for a fairly long spell, the authorities must consider his case for regularisation must consider his case for

regularisation 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 ClassIll or Classl V posts and

the selection made was by the subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general

rule that in every category of adhoc appointment, if the adhoc appointee continued for long period, the rules of recruitment should be relaxed and

the appointment by regularisation be made.

This is the last word on the subject and therefore, observations in Piara Singh's case as explained above cannot be construed to mean that

adhoc appointments cannot be replaced by regularly appointed persons. Since respondents No.6 to 10 have been selected by Recruitment Board

duly constituted for making such selection, the petitioners are not entitled to challenge their selection except on the ground of bias or malafide which

has not been pleaded. There is thus no substance in this petition which is dismisses without any order as to costs.