Excelsior Correspondent
JAMMU, Apr 8: Division Bench of State High Court comprising Chief Justice N Paul Vasanthakumar and Justice Dhiraj Singh Thakur today deprecated illegal and backdoor appointments in Jammu and Kashmir and issued guidelines for future recruitment.
The guidelines were issued in a Public Interest Litigation (PIL) filed by Shiv Shanker Sharma, a retired Assistant Engineer. The contention of the petitioner is that in Jammu and Kashmir about 7893 backdoor appointments were made in about 10 departments, which led to issuance of Circular No. 09-GAD of 2013 dated March 26, 2013 calling upon the authorities to strictly observe the restrictions as contained in Section 14 of the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010.
The petitioner through Advocate S C Mansotra submitted that illegal appointments and engagements of various persons were made and some of them were not possessing the requisite qualifications. Quoting various instances in his affidavit, the petitioner prayed for issuance of a writ of certiorari so as to hold the Jammu and Kashmir Civil Services (Special Provisions) Act, 2010 as ultra vires to the Constitution of India being violative of Articles 14 and 16 of the Constitution of India. He also prayed for cancellation of the appointments made illegally through backdoor methods.
After going through the petition, the DB observed, “the action of the State in appointing persons through backdoor negates the Constitutional legal rights of the persons, who are residents of the State, and is violative of Articles 14 and 16 of the Constitution of India”.
“The prayers are for issuing writ of mandamus directing the respondents to implement and follow in letter and spirit Circular No. 9-GAD of 2013 dated 26.03.2013 and take appropriate action against the authorities and officers who made various illegal appointments and engagements all over the State”, the DB said.
“The third prayer of the petitioner is for issuing a writ of mandamus directing the respondents not to make any such temporary engagements henceforth. His fourth prayer is for issuing directions to the respondents to spell out a transparent and clear policy in terms of ratio of strength at the minimum as per requirement to make appointments on regular basis and on adhoc, consolidated, casual or daily rated workers so as to justify the utilization of money from public exchequer”, the DB further said.
“Senior AAG Gagan Basotra has produced an order passed by the Government on March 17, 2015 and submitted that the authority to engage Casual and Seasonal Labourers to various departments was withdrawn with immediate effect”, the DB said, adding “due to this order, the third prayer made by the petitioner is already acceded to by the Government”.
Division Bench further observed, “the State Government though has issued instructions against engagement of any person, situation may arise to engage persons for attending emergency duties and routine duties for some time, for which the State must have clear guidelines for selecting and appointing persons in various cadres including Daily rated, Casual, seasonal or adhoc basis”.
“In view of the fundamental rights guaranteed to citizens for equal opportunities in public employment, all appointments made in Public Sector Undertakings and State Government departments and partly or fully aided Government institutions must be strictly in complying with the guaranteed rights”, the DB said, adding “the issue as to whether the Government department or agencies or instrumentalities can restrict the candidates sponsored through the employment exchange alone for selection to public employment was considered by the Supreme Court”.
The Apex Court has directed to all the High Courts to comply with the purport of Articles 14 and 16 of the Constitution of India while filling up of any vacant post either in the High Court or in the Subordinate Courts throughout India. In this decision, the Supreme Court has held that all posts shall be filled up by issuing advertisement in at least two newspapers, one of which must be in vernacular language having wide circulation in the respective State, apart from calling for a list from the local employment exchange and any selection made without advertising as prescribed, shall be void ab-initio and would remain unenforceable and in-executable except the appointment on compassionate grounds.
With these observations, Division Bench directed that any appointment— casual, adhoc, temporary, part time and regular must be in compliance with Articles 14 and 16 of the Constitution of India, which is equally applicable as per Section 10 of the Jammu & Kashmir Constitution. “If any officer deviates the principle and give appointment to any person, the same is illegal and the person so appointed will not get any benefit arising out of such illegal appointment and engagement”, DB added.
Follow our WhatsApp channel