Pankaj Gupta & Ors Vs.
State of Jammu & Kashmir & Ors [2004] Insc 545 (16 September 2004)
K.G. Balakrishnan & Dr. Ar.
Lakshmanan.With Civil Appeal Nos.4930-32, 4941, 4933-40, 4944, 4943, 4942 Of
2002 And Civil Appeal Nos. of 2004 [Arising out of Special Leave Petition
[Civil] Nos. 21267, 22983-22991, 23119 of 2003, 990 of 2004 and 3781-3789 of
2004] K.G. Balakrishnan, J.
Leave granted.
The appellants in these civil appeals are Class IV employees in the State of
Jammu and Kashmir. They were all appointed in 1997 and ever since their
appointment, they have been working as Orderlies, Process Servers, Guards, etc.
The appointments of these appellants were challenged by the respondents on
various grounds. The respondents alleged that there was no advertisement
calling for applications to fill up the vacancies of Class IV employees and the
names of these appellants were suggested by the Members of the Legislative
Assembly and Legislative Council and the heads of various departments appointed
these appellants based on such recommendations. The learned Single Judge before
whom the various writ petitions came up for consideration held that the
appointments of these appellants were illegal and were not made in accordance
with law. The appellants herein contended that on 11.11.1997.
there was a government decision made by the State of Jammu & Kashmir
pursuant to a detailed discussion on the floor of the Legislative Assembly
regarding lack of proper representation of rural masses as compared to urban
candidates in government jobs. It was probably felt that only persons staying
in urban areas, who alone could get adequate education, and thereby obtained
government jobs and it was in these circumstances that various Members of
Legislative Assembly and Legislative Council made their recommendations for
appointment of these appellants to Class IV posts.
The learned Single Judge, after elaborate discussions on the matter held
that appointments of these appellants were illegal and they were liable to be
removed from service. These appellants preferred an appeal and by the impugned
judgment, the Division Bench confirmed the judgment of the Single Judge.
We heard the appellants' counsel and counsel for the respondents. The
counsel for the appellants contended that the appointments were made pursuant
to a government decision and the names of these appellants were recommended by
various Members of the Legislative Assembly and the Legislative Council. It was
argued that the heads of various departments were competent to make appointments
to Class IV posts and, therefore, the appointments of these appellants are
legal. We are unable to accept this contention. Admittedly, these posts were
not notified by the government. There was no publication of a notification
inviting applications for filling up these posts. The names of these appellants
were recommended by the Members of the Legislative Council and the Legislative
Assembly for appointment. There is no evidence to show that any criteria
approved by government or any rules of recruitment were followed while making
these appointments. It may be true that the appellants may have been habitants
of rural areas and there was no adequate representation for this rural
population in Govt. jobs. But the government or the heads of various departments
could have formulated and resorted to some rational modalities approved under
the rules of recruitment to see that rural population also got adequate
representation in public employment. But the same could be done within the
constitutional limitations.
The appellants' counsel lastly pointed out that all these appellants have
been working since last several years and many of them have already crossed the
maximum age fixed for entry to government service, hence they may be regularised.
No person illegally appointed or appointed without following the procedure
prescribed under the law, is entitled to claim that he should be continued in
service. In this situation, we see no reason to interfere with the impugned
order.
The appointees have no right for regularisation in the service because of
the erroneous procedure adopted by the concerned authority in appointing such
persons. Hence, the reliefs are required to be moulded especially in view of
the fact that the appellants were appointed as early as in the year 1997 and
ever since they have been working as Orderlies, Process Servers, Guards, etc.
Moreover, the appointments of the appellants were made on the basis of the
recommendations of the members of the Legislative Assembly and Legislative
Council and on the basis of the decision made by the State of Jammu &
Kashmir pursuant to a detailed discussion on the floor of the Legislative
Assembly regarding lack of proper representation of rural masses as compared to
urban candidates in government jobs. Hence, we issue the following directions:-
1. All the vacant posts shall be notified for appointment and applications
called for in accordance with the Rules within six months from the date of the
receipt of this Judgment.
2. All the appellants herein may be permitted to submit application for
appointment against such notification.
3. As regards the upper age limit, these appellants shall be given
relaxation but there shall not be any relaxation in the matter of the basic
qualifications for appointment to Class IV posts.
4. The appellants may be allowed to continue in service till such regular
recruitments are made and these posts are filled up by a regular process of
appointment.
All these appeals shall stand disposed of with the aforesaid observations.
There shall be no order as to costs.
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