Naseem Amir Shah vs State & Ors.

Considered. Admitted.

Mr.Attar tenders a statement at bar that the objections filed on behalf of respondents may be treated as reply. The statement is taken on record, pleadings are complete. The matter has been heard finally.

Naseem Amir Shah petitioner was appointed as Marketting Inspector on 01.07.1996, in the office of Assistant Marketting Officer Lucknow by the then Assistant Marketting Officer Lucknow who happen to be the father of the petitioner said Naseem Amir Shah. He came to be appointed in the arrangement created by transfer of one A.R.Mir Marketting Inspector to Delhi on stop gap arrangement till posting of any suitable person from the Head Office with condition that he shall have claim to continue after a gap of one year in which case he shall be treated as regular temporary employee of the Directorate of Horticulture of the State. The petitioner joined and worked as such Marketting Inspector till 21.08.1998. The Government of J&K terminated his services vide order No: 186 CHPM of 1998 dated:22.08.1998. This termination order is impugned in the writ petition and is prayed to be quashed and petitioner allowed to continue to discharge his duties as Marketting Inspector with payment of salary attached to the post through appropriate writ.

In reply respondents are admitting the appointment of petitioner as marketting Inspector on 01.07.96 by the then Assistant Marketting Officer Lucknow, the father of the petitioner. It is averred that the father of the petitioner abused and misused his official position and acted violation of rules to benefit his own son. The appointment is alleged to be dehors the selection rules. Appointment to the post of Grading and Marketting Inspector has to be made through State Selection Recruitment Board under SSRB Rules (SRO 194/92). The selection having been made by the SSRB and appointment having been made by the Competent authority to the post, the petitioner's services stand terminated. It is however, stated that the arrangement of the petitioner was just a stop gap arrangement and even in the earlier writ SWP 186/98 filed by the petitioner he did not succeeded as prayer of regularisation of his services as grading and Marketting Inspector was declined by the court. The petition is prayed to be dismissed.

The counsel for the petitioner submits that the initial order of appointment of petitioners(annexure PA,though indicating in terms it as a stop gap arrangement, provides that in case no suitable person is deputed by the head office for one year, the incumbent petitioner shall have a right to continue and shall be deemed as regular employee of the Directorate of Horticulture. However, as the Directorate failed to appoint any person as grading and Marketting Inspector Lucknow within one year, therefore, petitioner acquired the right to continue as regular employee. He further submits that the termination order annexure""C"" has been passed for malafide reasons. The petitioner despite having completed over two years as the marketting Inspector has been thrown out for extraneous reasons and on malafide considerationhe words "Registrar" for District Judge, as has been pleaded and argued. The District Judge under Section 29 of the Civil Courts Act enjoys a pivotal position in the hierarchy of subordinate courts, as he knows best about the Advocates. The respondent has failed to give particulars of the documents or the material referred to in the certificate, even after being asked to do so. This was sufficient to reject the certificate which even otherwise was not valid.

Moreover, the object of the Rule being co ensure actual practice at the Bar can be best achieved only by enforcing it and not be reading it, as suggested. The plain language of the Rule must be followed instead of doing violance to it. In case it is found deficient amendment can be considered. Even in case of Girdhari Lal (Supra) it was held that the plain language should ordinarily be adopted by observing as under:

Our own court has generally taken the view that ascertainment of legislative intent is a basic rule of statutory construction and that a rule of construction should be"" preferred which advances the purpose and object of a legislation and that though a construction, according to plain language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or obsurdities.........

For the aforesaid reasons, this appeal is allowed and the order imp petitioner's father and the Commissioner/Secretary is nothing but wishful thinking. In the earlier writ, the court has refused to be drawn to pronounce on the question of regularisation of petitioner's service and impliedly regularisation has been found not legal and just, therefore, the petitioner's prayer over again for the same relief in the petition is impermissible.

Initial appointment order of petitioner dated:01.07.96(annexure,A), as Marketting Inspector in Assistant Marketting Officer at Lucknow by the then Assistant Marketting Officer father of appointee petitioner is just a stop gap arrangement ordered consequent on the arrangement created by transfer of one M.R.Mir the then Marketting Inspector at Lucknow as Marketting Inspector Delhi. The condition in the order that if in case petitioner continues in the arrangement for one year, he shall have the right to continue and to be treated as regular temporary employee of the Directorate of Horticulture, is not covered by any provision of law or rules, such condition can not even serve the ends of administration. The appointment.. to the post of Grading and Marketting Inspector in Horciculture department may be at Lucknow, Delhi or any other place within or outside the state, has to be in accordance with the recruitment rules applicable in the field. The appointment to the post of the Inspector is made in accordance with and under Jammu & Kashmir Subordinate Service Recruitment Rules, 1992 (SRO 194 of 1992). Any appointment dehors these rules can neither be regularised nor can such appointment or arrangement confer any benefit or right on an incumbent to continue. From record it is seen that this post of Grading and Marketting Inspector available in the Directorate of Horticulture has been filled in accordance with the rules and the competent authority has issued orders of appointment on the recommendation and selection made by the SSRB and consequent upon such appointment, one Bashir Ahmad Bhat Grading/Marketting Inspector AGMO's office Bomai Sopore Zone has been transferred and posted as marketing Inspector in the office of Area Marketting Office Lucknow. This order has been issued on 22.08.98, even earlier to the presentation of the instant writ before the High Court.

The contention that the action of the competent authority namely Commissioner/Secretary respondent No:l in issueing the order of termination of petitioner (annexure c) is malafide on extraneous considerations and based on (some) rivalry between petitioner's father and respondent No:l, is, not supported either by facts or by any material on record. The contention is bald. It lacks in details. No particulars or details required to lay foundation for malafide are mentioned or given in the petition. Mention of"words"malafide reasons, "malafide consideration"without anything more can not cloth the impugned order malafide. The necessary pleadings thereto are lacking.The impugned order on the face of it has been passed within jurisdiction by a competent authority. All aspects of the matter have been considered. Even the earlier direction of this court while disposing of SWP No: 186/98 interse the parties on 06.05.98 has been also considered. The rule position has been also accounted for. The order does not appear either on facts or law to suffer from any malice. There is nothing on record to indicate any rivalry between the petitioner's father and Assistant Marketting Officer at Lucknow( on the relevant date) and the respondent No: 1 Commissioner/Secretary and in any case nothing of the sort based on any fact is given out in the petition. Mere mention of a word or two of the supposed rivalry will not suffice. In such a situation it is not an adverse reflection on the impugned action of the respondents.

The petitioner earlier filed writ petition No: 186/98 against the very respondents who are before the court in the instant writ petition, with prayer for declaring him as a regular employee and for release of salary for the period he rendered services in the arrangement as Marketting Inspector Lucknow. The court while disposing of the petition on 06.05.98 vide annexure,Rl declined to grant the relief of regularisation but issued a direction for release of salary to the petitioner for the period he has worked or may work. In fact the relief of the regularisation as sought in this petition stands declined earlier also. In such circumstances to petition pray for grant of the relief second time is not appropriate as a matter of policy, if not on other counts. Merely working in an arrangement over a period may be for a year or two can not confer any right on the occupant of such arrangement to hold the post indefinitly and then to seek regularisation on such basis.when the arrangement and the appointment itself is beyond the competence of the authority allowing and providing such arrangement and more when so the arrangement/employment is not covered by the recruitment/appointment rules. In this case, the act(s) of ommission and commission is compounded as the then Assistant Marketting Officer at Lucknow who allowed and ordered the arrangement and made the appointment of the petitioner.happens to be no other person than the father of the petitioner. No other point was taken or canvassed before this court.

In the result, for the aforesaid reasons, the petition is dismissed.