LA officers move application for removal of objectionable pleadings
Mohinder Verma
JAMMU, Sept 1: In a major development in the much publicized case of illegal appointments in the Secretariat of Legislative Assembly, the Jammu and Kashmir State Accountability Commission has issued notices to three former Speakers including two sitting MLAs for furnishing comments in their defence. On the other side, the Secretariat of Lower House of the State Legislature has formally moved an application for removal of pleadings whereby authority of the Commission was undermined.
Reliable sources told EXCELSIOR that Full Commission comprising Justice B A Khan (Chairperson) and Justice J P Singh and Justice B A Kirmani (Members), which met for two days at Srinagar, found it appropriate to exercise the powers conferred under Section 12 of Jammu and Kashmir Accountability Commission Act.
The Section 12 of the Act, which deals with the preliminary scrutiny of complaints by the Accountability Commission, states: “The procedure for verification in respect of a complaint under Sub-Section (1) shall be such as the Accountability Commission deems appropriate in the circumstances of the case and in particular, the Accountability Commission may, if it deems it necessary so to do, call for the comments of the public functionary concerned”.
The Full Commission has directed the Registry to issue notices to three former Speakers—Mohd Akbar Lone (presently MLA of National Conference), Mubarak Gul (also sitting MLA of National Conference) and Tara Chand (former MLA of Congress), sources said while disclosing that the Registry of the Commission has initiated the process and notices will be formally issued early next week in view of vacations.
“The decision to issue notices to three former Speakers for furnishing comments in this much publicized case has been taken after perusal of the reports submitted by the State Vigilance Organization to the State High Court in a Public Interest Litigation (PIL) highlighting these illegal appointments”, sources said, adding “these three former Speakers will have to present their defence within a period of two months as per the provisions of the J&K State Accountability Commission Act”.
The Section 13 of the Act states: “The concerned public functionary shall present his defence within a period of two months and in case no comment or reply is received within the time specified, it shall be presumed that the public functionary doesn’t contradict the allegations made in the complaint”.
It is pertinent to mention here that on last date of hearing the Accountability Commission had observed that the spirit of Article 14 of the Constitution of India, which provides for equality and fair procedure, doesn’t appear to have been followed by three former Speakers while making appointments in the Legislative Assembly Secretariat.
Even the State Vigilance Organization (SVO) in its reports, which were relied upon by the SAC before taking decision on issuance of notices to three former Speakers, has established glaring irregularities and procedural lapses besides blatant violation of Constitutional and fundamental rights in making these appointments.
“Though the existing Recruitment Rules—J&K Assembly Secretariat (Recruitment and Conditions of Services) Rules, 1959 give powers to the Speaker to make such appointments yet the mode of making such appointments is not clear in the Rules”, the SVO reports said, adding “in the absence of such Rules regarding mode of appointments, the law laid down in this behalf makes it obligatory to adopt the procedure of open and fair competition by putting these posts to the advertisement thereby giving equal opportunity to the eligible candidates as provided under Constitution”.
“The appointments have been made by the Speakers of the relevant times directly after receiving the applications/representations from the candidates and for making such appointments by such direct mode recourse of precedence has been taken which is not legally sustainable as in the years 2001 and 2005 the posts were put to advertisement”, the SVO reports further said.
As per the record furnished by the Assembly Secretariat during the course of preliminary enquiry by the Vigilance Organization, 28 appointments were made by Mohd Akbar Lone, 5 by Tara Chand and 4 by Mubarak Gul.
Meanwhile, Legislative Assembly officers, who were present before the Accountability Commission, formally moved an application through their counsel for removal of those pleadings, which were found objectionable by the Full Commission in its last sitting.
In the pleadings the officers representing the Assembly Secretariat had mentioned that position of Speaker cannot be undermined by any agency especially when the J&K Assembly Secretariat (Recruitment and Condition of Services) Rules give powers to Speaker to make appointments.
However, the Accountability Commission had told them that as per the provisions of J&K State Accountability Commission Act it enjoys powers even to examine the act of Speaker. “The competence of appointing authority doesn’t mean going against the principles of natural justice as equal opportunity is to be provided to everyone-all eligible candidates for any post which is Constitutional and Fundamental right guaranteed to all citizens in the matters of employment. Moreover, precedence cannot make rules”, the SAC had observed in its last sitting.
“If the allegations against the former Speakers particularly those who are presently members of the Lower House, are established then SAC will make a recommendation to the Governor which may result into vacation of seats of Legislative Assembly from which they have been elected”, sources said.
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