*Constitutional right thrown to winds by custodians of laws
Mohinder Verma
JAMMU, July 19: State Vigilance Organization (SVO) has established that 37 appointments were made ‘illegally’ in the Jammu and Kashmir Legislative Assembly Secretariat by three former Speakers of the House. However, it has refused to frame a case of criminality on the ground that only irregularities and procedural lapses have surfaced during the course of investigation.
Astonishingly, the custodians of laws instead of ensuring formulation of much-needed rules for governing the selections/appointments in the Assembly Secretariat preferred to throw Constitutional and Fundamental rights into winds despite being aware of the fact that these rights provide for equality and equal opportunity to all the citizens for recruitment.
The issue of 37 illegal appointments in the Assembly Secretariat came to be highlighted before the High Court of Jammu and Kashmir in a Public Interest Litigation (PIL) and in compliance to the order of the High Court dated April 16, 2015 a preliminary enquiry bearing No.PR-01/2015 was registered and enquiry was accordingly conducted by the State Vigilance Organization.
On December 3, 2015, the High Court, after going through the compliance report filed by the Vigilance Organization, ordered: “It is for the Inspector General of Police, Vigilance Organization to take a final call on the report and decide future course of action within a period of two weeks”. As the facts found during preliminary enquiry involved questions of law, the Vigilance Organization through General Administration Department approached the Law Department for its opinion.
However, the Law Department told the Vigilance Organization in unambiguous term that any outside interference or advice would prejudice the investigation and influence the conclusions drawn by the SVO on the basis of facts and circumstances of the case. “Let the Vigilance Organization draw its own conclusions on the basis of record available to it and the evidence collected by it during the course of investigation of this case”, the Law Department further said in its opinion.
As per the record furnished by the Assembly Secretariat during the course of preliminary enquiry by the Vigilance Organization, 28 appointments were made by the then Speaker Mohd Akbar Lone (presently MLA of National Conference), 5 by the then Speaker Tara Chand and 4 by the then Speaker Mubarak Gul (another sitting MLA of National Conference).
“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 has observed in its latest status report submitted to the High Court, the copy of which is available with EXCELSIOR.
“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 SVO said, adding “37 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”.
Pointing towards the reply of the Assembly Secretariat regarding the manner in which these 37 posts were filled up, the SVO said, “it is clear from the records and reply that the procedure of law has not been followed in making such appointments and only precedence has been relied upon. However, the precedence cannot make rules”.
“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 rights guaranteed to all citizens in the matters of employment to any office of the State”, the SVO said in the status report, adding “there should have been proper advertisement by way of inviting applications giving opportunities to all eligible candidates for these posts and a due proper selection process should have been followed in making such appointments, which has not been done in these 37 appointments”.
It is pertinent to mention here that the J&K Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1959 though give the powers to the Speaker of Legislative Assembly to make such appointments but these rules don’t provide mode of recruitment.
Further the draft rules though prepared have not been ratified by the Government as such in absence of the provision for mode of recruitment it was obligatory upon the appointing authorities to make such appointments in accordance with the provisions of the Constitution of India which provide for equality and equal opportunity to be given to the candidates for such recruitment.
“Consequently, the modes of recruitment adopted by other recruitment authorities and powers in accordance with the Civil Services Regulations and other allied rules ought to have been adopted by the Speakers of relevant times so that equal opportunity would have been provided to the eligible candidates for appointment to such posts”, the SVO said, adding “the Government ought to have framed proper rules/selection procedure as also a selection agency for such recruitments in the Assembly Secretariat ought to have been put in place for proper selection”.
While establishing that irregularities and procedural lapses have surfaced in these 37 ‘illegal’ appointments, the SVO said, “during the course of preliminary enquiry conducted into the matter no criminality has surfaced”. This indicates that SVO is not going to lodge any FIR into these 37 ‘illegal’ appointments.
It has suggested that Government should frame rules for governing mode of selection/appointment in the Assembly Secretariat so that such irregularities are not committed in future and the provisions of the Constitution of India and Constitution of J&K and law laid down in this behalf are strictly adhered to in making appointments.
It is worthwhile to mention here that in similar irregularities in various Government departments the State Vigilance Organization has booked several officers and officials but in the instant case different yardstick has been adopted.
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