Meenakshi Jamwal vs State and others

T.S. Doabia, J.

1.Stand taken by the respondents for making appointment on adhoc basis for a period of 89 days initially and extendable as per the requirement of

the department for a further period of 89 days only for the post mentioned in the advertisement notice published in Daily Excelsior of November,

1998, copy whereof is AnnexureG, is the subject matter of challenge in this petition. The petitioner is qualified in the discipline of B.D.S. Course.

She wants to get appointment on regular basis. It is submitted that the respondents have not indicated any criteria on the basis of which selection is

to be made. Challenge to the advertisement is on the ground :

(i) that adhoc appointment cannot be made;

(ii) that the respondents should disclose the criteria on the basis of which appointments are to be made.

In para4 of the writ petition, it is submitted that addition of 2% marks depending upon number of years which have lapsed between the date of

application and the obtaining of the degree, is said to be not a sound criteria. The grievance of the petitioner as projected by the petitioner was

taken note of, when the petition was taken for motion hearing on 29.1.99. A direction was given to keep one post vacant. This order was modified

on 24.9.99; operative portion of which is reproduced below :

By referring to a few precedents, he submits that the petitioner does not fall within the zone of consideration. Again there is nothing on the record

to support this submission also. Accordingly, writ petition is admitted and as an interim measure, it is ordered that one seat of Dental Surgeon,

which was ordered to be kept vacant in terms of the order dated 29.1.99 shall be offered by the respondents to the petitioner and she will be

allowed to continue to work during the pendency of the writ petition. It is however, reiterated that this is purely an interim arrangement and will

abide by the ultimate decision of the writ petition.

Thus basic stand of the petitioner is that adhoc appointment should not be made when the need is permanent and that the criteria fixed in the

matter giving 2% weightage on the basis of gap between entry into the service and obtaining the degree, is not be good criteria. So far as policy of

making adhoc arrangement when the need is permanent is concerned, the consistent view is that the policy of adhocism adopted by the State

Government for a long time results in the branch of Articles 14 and 16 adhoc appointments are unreasonable, arbitrary and is nothing but the

archaic hire and fire policy since demolished by the Constitution and the law. System of appointment making appointments on adhoc basis for

varying periods though the petitioner is entitled for regular appointment is discriminatory and violative of constitutional protection. The power to

make provisional appointment is not a charter for arbitrary preference. It is no administrative licence to ignore the service conditions of serving

personnel. Provisional appointments cannot be made in violation of the rules, though, in very urgent cases, this power may be invoked when rules

cannot be complied with. A provisional appointment cannot be continued endlessly jeopardizing the rights of the employees governed by specific

service rules. Therefore, when the need is permanent, the State should not resort to adhocism.

The criteria, which has been followed and which has been made the basis of appointment, be examined. In para3 of the objections preferred by

the State and in para 02 of the counter, it has been stated that the Health and Family Welfare Department submitted a memorandum to the Cabinet

for obtaining sanction inter alia to make adhoc appointment for a period of 89 days initially extendable for further period of 89 days if need be,

after giving break of two days. The said proposal is said to have been approved by the cabinet. The criteria which was to be followed is as under :

The mode of appointment will be merit plus 2% marks for each year since the completion of internship from a recognised institution subject to a

maximum of 10% with no addition of marks for those who have completed internship during the current year.

It is further submitted that this criteria was adopted. The petitioner obtained 59.28% marks without any additional marks whereas the last

candidate appointed on adhoc basis had sedured 61.57% marks from Srinagar and from Jammu obtained 61.78% marks.

I am of the opinion that this criteria giving 2% additional marks for each year after passing BDS Final Examination till adhoc selection is made;

has no nexus with the object sought to be achieved. If a person who is appointed after obtaining educational qualification not appointed in

government or private hospital and has not gained any experience, then he cannot be given advantage for sitting in his house. The position might be

different if during this period a particular candidate is engaged somewhere i.e. private institution and is gaining experience. Sitting idle in home and

when a candidate seeking appointment has gained no experience, should not have been recognised. This would only amount to putting premium

and giving benefit to a person to sit idle and then giving advantage to him. Therefore, the prescription of giving 2% marks in the manner it has been

done, cannot be sustained. What has been said in this judgment, would be given prospective effect. The appointments already made, are not being

upset. The petitioner if not given appointment in terms of the interim direction dtd. 24.9.99, be now appointed. She is held entitled to the monetary

benefit with effect from the date interim direction passed by this court i.e. 24.9.1999. Other benefits from the date others came to be appointed.

Disposed of accordingly.