Nikhil Kumar vs State of J & K

The petitioner was appointed as Sub Inspector (Excise) vide Order No. 19Adm of 1984 dt. 2041984 by Excise Commissioner J&K,

temporarily against the vacancy caused due to the suspension of Bodh Raj, Sub Inspector (Excise). That suspension arrangement continued upto

June 7, 1984. He was then again on June 19, 1984, appointed as Sub Inspector (Excise) by the Excise Commissioner J&K against another

suspension arrangement of Shri Baldev Raj, which arrangement continued upto September 26, 1984. On that very date he was again appointed as

Sub Inspector (Excise) in another suspension case of Charan Dass, Sub Inspector (Excise), which arrangement continued upto December 31,

1984, when he was appointed as Sub Inspector (Excise) in another suspension arrangement of Sh. Virender Kumar. That suspension arrangement

was still continuing when on February 19, 1985, the Excise Commissioner J&K appointed the petitioner temporarily on adhoc basis for a period

of three months against available vacancy. The said order was then modified by another order No. 111/Adm of 1985 dt. 17.4.1985 extending the

period of his adhoc appointment from three months to six months which too against the clear vacancy. On September 24, 1985, another order

was issued by Deputy Excise Commissioner (Executive) Jammu appointing the petitioner as Sub Inspector (Excise) in the suspension arrangement

of Mohan Singh, Sub Inspector. After that the Excise Commissioner under his letter No. 4772/Adm of 1986 dated 15.1.1986 sent a

communication, to the CommissionercumSecretary Finance Department, J&K, Jammu, seeking regularisation of the appointment of petitioner as

Sub Inspector (Excise) against the available vacancy, which did not materialise and the Department filled in two vacancies of the Sub Inspectors

(Excise) without any advertisement or even reference to Selection Board.

Petitioner's case is that his employment from April 20, 1984 till May 25, 1988, continued when order No. 86/RSJ dt. 25.5.1988 was issued

terminating his services as ' a consequence of which he was relieved on that very date. He has challenged that order being malafide, depriving him

of his valuable right and he has prayed for quashing the same and further for issuing direction to reinduct him against the post of Sub Inspector

(Excise) and further to hold him to be in continuous service without any interruption.

Counter was not filed by the respondents despite so many opportunities afforded and preemptory order passed in this regard on March 29,

1989, by this Court. Later on, an application CMP No. 704/89 was filed oh behalf of the respondents on October I3, 1989, for condoning the

delay and placing the counter on record, which application was dismissed vide order of this Court dt, October 13, 1989. In view of this order of

the Court, the counter filed on behalf of the respondents cannot be considered.

I have heard learned counsel for the parties and perused the record shown to me by Mr. Bhat learned counsel appearing for the respondents 2

& 3. This record is quite silent about the reason as to why the services of the petitioner were terminated excepting coming to know from the

impugned order dated May 24, 1988, issued by Deputy Excise Commissioner that the petitioner was ousted from services. The fact, however,

remains that the petitioner has served the Excise Department, as a. Sub Inspector (Excise) from April 10, 1984 till May. 1988, with short breaks.

The service of the petitioner for four years was completely ignored when the Head of (he Department, i. e. Excise Commissioner had

recommended for his permanent absorption on regular basis as Sub Inspector (Excise) against clear vacancy. Thus two vacancies where' filled

without considering the petitioner, when a. valuable right had accrued to him for his remaining in the department for such a long period.

Their Lordships of the Supreme Court in similar circumstances in case Jarnail Singh & Ors vs. State of Punjab and Ors. (1396) 3 Supreme

Court Cases 277, have held that termination of service of adhoc recruits on ground that posts no longer required while juniors retained and also

regularised, amounting to violation of Articles 14 and 16 of the Constitution of India being arbitrary and discriminatory.

The petitioner remained as adhoc employee for a long period of about four years and his .services were terminated without any rhyme and

reason and during that period and even after that some candidates were appointed and adjusted as Sub Inspectors (Excise). This action of the

respondents .was nothing but an arbitrary one which certainly violates the provisions of Articles 14 and 16 of the Constitution of India.

For the aforesaid reasons, this petition is allowed and respondent No. 2. i.e. Excise Commissioner is directed to consider the case of }he

petitioner for his appointment as Sub Inspector Excise against any available vacancy in the department.

There will be no order as to costs.