R.P. Sethi, J.:-

In all these petitions where the petitioners succeeded in procuring orders for their appointments to various posts on stop gap arrangement for specified periods, have approached this Court with the prayer for the issuance of a direction to the respondents to continue them on the posts to which they were appointed till regular selection is made. It has been further prayed that the respondents may further be directed to regularise them on the aforesaid posts. It is submitted that the petitioners possess the minimum requisite qualification for the posts to which they were appointed and the said posts have not been filled up so far. They have claimed to be the best candidates of the area possessing requisite qualifications and being entitled to hold the posts. It is contended that as the respondents have failed to fill the posts by regular selection the petitioners have acquired a right to the posts and the respondents are not entitled to terminate their services after the expiry of the period for which they were appointed. The petitioners have equated their appointments with ad hoc appointments which are stated to be necessary to carry the affairs of the State in emergency and the State Govt. is manifestly obliged to continue such ad hoc appointees uninterruptedly till the selection is made by the competent authority. It is contended that the petitioners are sought to be removed from the posts with oblique motives of adjusting some favourites of the respondents for filling the posts on substantive basis. The contemplated action of the respondents is terminated to be mala fide, illegal, arbitrary, unreasonable and without jurisdiction.

2. In the reply filed on behalf of the respondents it is submitted that as no fundamental or legal right of the petitioners has been violated their petitions being misconceived are liable to be dismissed. The respondents have declared to implement the mandate of Articles 14 and 16 of the Constitution of India by making regular appointments after affording equal opportunity to all who are eligible to be appointed to the posts. The appointments of the petitioners are stated to be made purely as stop gap arrangement conferring no right upon them to approach this Court for the grant of relief as prayed. The appointments to any class or service are required to be made by the Government or by an authority empowered in this behalf by Government in accordance with the provisions of the J&K Civil Services (Classification, Control & Appeal) Rules, 1956 and such power has been delegated to the Distt. Committees of which the Distt. Development Commissioner is one of the Members and has got no exclusive right to make appointments. The appointments of the petitioners are alleged to have been made by the authorities who had no power to make such appointments even on stop gap arrangement. The appointment of the petitioners are stated to be regulated by Govt. Orders No. 797 of 1989 dated 26.7.1989, No. 462 of 1990 dated 16.4.1990 and Govt. Order dated 23.5.1991.

3. I have heard learned counsel for the parties and perused the record.

4. Learned counsel appearing for the petitioners have relied upon number of judgments of the Supreme Court and the High Courts, to urge that the petitioners are entitled to the grant of relief as prayed and the respondents are not entitled to either terminate the services of the petitioners or deprive them from continuing to hold the posts to which they were appointed by omitting to pass effective orders for their continuation.

5. It has been noticed by this Court in number of cases that a new class of civil servants has emerged in the State of Jammu and Kashmir, who, after obtaining the initial orders of appointment on ad hoc basis or as a stop gap arrangement, been approaching this court with the prayer, as the petitioners have made in this petition, and are continuing to hold the posts on the basis of the interim directions passed in their favour. It is well settled proposition of law that the purpose and object of the statutory recruitment and appointment rules which are enacted by the State Govt. in exercise of the power under Art. 309 of the Constitution of India, corresponding to Sec. 124 of the State Constitution is to afford equal opportunity to all citizens in the matter of public employment or appointment to the eligible similarly situate, to draw the best available element out of the competing candidates and to provide impartial selection by the selection committees constituted for the purpose. The State is, however, under a constitutional obligation to reserve the posts for Scheduled Castes/Scheduled Tribes, Socially and Economically Backward Classes. Articles 14 and 16 of Constitution of India which are the heart and soul of our constitutional system have guaranteed the fundamental right of equality before law and equal protection of law which cannot be obtained unless equality of opportunity is afforded to all citizens in all matters relating to appointment to any office under the State. The respondents cannot be permitted to resort to such methods which may negate the equality guaranteed by Art. 16 depriving the opportunity to all eligible citizens to apply for appointment to the post under the State and to be considered on merits. Any employment or appointment made in violation of the guarantee of equality is likely to offend Articles 14 and 16 of the Constitution and cannot be made a basis for granting the relief to the persons who have succeeded in violating the law nor the same can be made a basis for the issuance of a direction at the instance of such irregularly appointment of civil servants. Irregularly appointed petitioners cannot be permitted to assert the right to hold the post and continue to hold the same merely because they were initially appointed for certain period or on ad hoc basis. Art. 16 is not applicable to the termination of the services of such ad hoc employees particularly when they were appointed for a particular period of time with the clear understanding that they will have to vacate after the expiry of the period for which they were appointed. According to the Webster's new international dictionary, word 'ad hoc' has been defined to mean, "pertaining to or for the sake of this case alone." In Random House Dictionary the meaning of the word "ad hoc" is, "For this special purpose with respect to this subject or thing." A full Bench of the Punjab and Haryana High Court in S.K. Verma and others v. State of Punjab and others, AIR 1979 Punjab and Haryana 149, considered the case of such employees and held, "Articles 14 and 16 are attracted when equals are treated unequally or to put in reverse equals are treated equally. The ad hoc employees cannot claim any hostile discrimination qua same unspecified persons who are not even parties to the petition and who in some eventuality may later come to hold the posts, which they are being asked to vacate .....Article 16 could not even remotedly be invoked in such cases." Under similar circumstances, a Division Bench of the Gujarat High Court in Bhartiben Nanubhai Balsara and others v. State of Gujarat and others, 1989(4) SLR 155, also approved the view taken by the Punjab and Haryana High Court and held;

"This Court had occasions to consider such cases wherein dispute was between the employees who were irregularly appointed by the head of the departments vis a vis the employees subsequently selected by the competent authorities as such irregularly appointed employees asserted right to continue in service. The Division Bench of this Court in Special Civil Application No. 5993 of 1986 in one of us (A.M. Ahmadi, J.) was a party, had the occasion to consider the case of irregularly appointed Assistant Engineers who were appointed by the Irrigation Department, without being selected by the Gujarat Public Service Commission as the said posts were within the purview of selection by the Gujarat Public Service Commission under Article 320 of the Constitution of India. Subsequently, the Public Service Commission held the interview and selected some of them. Certain Assistant Engineers raised similar dispute and asserted their right to continue and hold the posts as they were appointed and served the department for certain period. Their contention was repelled observing that it was only because of want of GPSC selected candidates that purely temporary and adhoc appointments were permitted till regularly selected candidates became available. Now that the GPSC selected candidates are available the ad hoc appointees are being asked to make room for them. To direct their continuance in service would not only be in violation of the terms contained in paragraph 4 of the letter of appointment but would also amount to breach of the requirements of Article 320 of the Constitution. No court of law can permit such infraction. The ratio of the judgment is that such irregularly appointed employees, in violation of the Recruitment Rules or selection by the Competent authorities have no right to continue in service nor they can be protected by the Court of law. Similar point came for consideration before M.B. Shah, J. in Patel Evelin Ranchhodbhai v. The Gujarat Ayurved University, 1987(2) GLH 461 : (1987) 2 GLR 1299. In that matter, the midwife was appointed in the Hospital of the Gujarat Agurved University on temporary basis even though not found fit by the Selection Committee and was above the prescribed age limit. The Rules provided for the appointment by following the procedure. It was in terms held that where the recruitment Rules provide for the selection, the appointment should be made the post should be filled in by the candidate selected by the Selection Committee by following the proper procedure and the employee who is appointed purely on ad hoc basis, without following the proper procedure cannot get a right to be appointed permanently on the said post. If it is accepted that the irregularly appointed employee has right to continue on the same post in violation of the recruitment Rule, the recruitment Rules shall become nugatory or otiose and the department can favour any person or appoint any person without following the procedure, which would lead to arbitrariness. In similar other case in Vithalbhai Babaldas Patel v. Oil and Natural Gas Commission and others, 1987(2) GLH 439 : ( 1987(2) GL 1308) the same view is expressed. In that matter, it was not disputed that recruitment of employees for the specified posts in ONGC were regulated by the regulations of 1980. Some of the employees were appointed for specific period as contingent work charged unskilled labourers. It was held in terms that, if employment or appointment of temporary or ad hoc appointee is regularised merely because of their temporary appointment, it would deny equality of opportunity to other qualified persons. The learned Judge drew support from judgment of the Division Bench of this High Court in Special Civil Application No. 3932 of 1984. Yet in another judgment in Special Civil Application No. 4385, 4386 and 4387 of 1987 ( Ghelabhai Popatbhai Tarpara v. Agricultural Procedure Market Committee, Kalaved reported in 1988(2) GLR 1426 by the Single Judge of this High Court, delivered on April 28, 1988, similar view is expressed. The petitioners in those matters were the gate clerks working with the Marketing Committee and were appointed on ad hoc and temporary basis and their services terminated as the appointments to the posts were to be made out of the selectees selected in accordance with the provisions of the recruitment Rules. Considering various judgments on this point, the contention of the petitioners to continue and to hold posts turned down by the learned Judge. The Letters Patent Appeals No. 212 of 1988, 213 of 1988 and 214 of 1988 preferred against the judgment were also summarily dismissed by the Division Bench on July 18, 1988. The view of this High Court, so far as such irregularly appointed employee are concerned is consistent, that they have no right to continue in the service and hold posts and should make room for the regularly selected candidates."

This Court also held in a set of writ petitions entitled Ghulam Hassan Naik v. Distt. Development Commissioner and others, 1994(2) S.C.T. 137 : 1994(2) S.C.T. 443 (SWPs Nos. 1234/92, 840/92 and 1179/92) decided on July 16, 1993 :

"In order to appreciate the rival contention of the parties, some facts pertaining to the appointments of Class-IV employees and other employees on ad hoc basis are required to be noticed. In the circular No. 39-GD of 1988 dated 19.7.1988, it was directed that as the Chief Secretary had observed that various departments had committed irregularities in making appointments of ineligible candidates, the departments should thereafter process the case for appointment on ad-hoc basis for obtaining approval of the Hon'ble Chief Minister in Coordination. The Chief Secretary desired not to process such cases in future and put a total stop to all irregular appointments hence-forth and once for all. All the Commissioners-cum-Secretaries to the Govt. were requested to furnish the General Department a list of all such cases pending with them for orders of the authorities and maintain strict check in the departments and also to institute action against such officials/officers responsible for committing such irregularities. Vide Govt. Order No. 797-Edu. of 1989 dated 26.7.1989 issued by Commissiner-cum-Secretary to Govt., Education Department, sanction was accorded to the constitution of Committee of the officers mentioned therein for making recruitment to the posts falling outside the purview of Jammu and Kashmir State Services Selection Board in Education Department and its allied department. For Jammu Division, the Committee comprised of the Director, School Education, Jammu as Chairman; Joint Director, Principal, Higher Secondary School, Pallanwalla and Under Secretary Education, as members. Vide Govt. Order No. 462-GR of 1990 dated 16.4.1990, it was provided,"

In supersession of all previous order/circulars/instructions issued by the Govt. from time to time on the subject, it is hereby ordered that the recruitment to all sanctioned posts falling outside the purview of the State Subordinate Services Recruitment Board including all category Class-IV posts shall henceforth be made by the Appointing Authority on the recommendations of a Board constituted in each district consisting of the following :

1. District Development Commissioner - Chairman

2. District Superintending Engineer - Member

3. District Education Officer - Member

4. District Employment Officer - Member Secretary

The jurisdiction of the District Recruitment Board will extend to all category IV of posts whether they are included in the District, Divisional or State cadres.

Chairman will be competent to co-opt any other officer as a Member for a particular meeting of selection. District Head of the Department to which the recruitment relates will ordinarily be coopted for the selection.

The Board shall restrict selection of candidates for posts in a District to candidates for their districts only.

The Board shall try as far as possible to recruit local candidates in each area for local vacancies like that in Gurez, Karnah, Bani, Gool, Gool Gulabgarh, Paddar etc."

6. The said Government order was partially modified vide Govt. Order No. 503- GAD of 1991 and it was directed that District Level Committee constituted under the District Development Commissioner for making selection for appointment to the posts falling outside the purview of State Subordinate Services Recruitment Board including all Class-IV posts, shall make selection for such posts only which are in the District Cadre. It was further directed that for the Divisional and State cadre posts including such posts in the Civil Secretariat the Competent Authority shall make appointment on the basis of the recommendations of the Committee constituted vide the said Government order, Vide Govt. Order No. 1178-Edu. of 1992 dated 13.11.1992 issued by the Commissioner/Secretary to Govt., Education Department, it was directed that selection for non gazetted posts be made only against clear vacancies through J&K Subordinate Services Recruitment Board after following the proper procedure and for Class-IV posts appointments be made after due selection by the Committee empowered in that behalf. In writ petition No. 1234/1992, the petitioner was appointed as a Chowkidar by the District Development Commissioner and allowed to continue for a period specified therein or till selection was made by the competent authority, whichever was earlier. As the respondents were of the view that the District Development Commissioner was not the competent authority to make appointment of the petitioner, his continuance after the prescribed period was uncalled for. The petitioner in that writ petition has prayed that he should be allowed to continue in service as chowkidar till the final selection is made by the competent authority and paid all his dues regularly. The appointments of the petitioners is stated to have not been continued after 30th of November, 1992, in view of the standing directions in that behalf as referred to hereinabove. It is submitted that the Deputy Commissioner being only a member of the Committee was not empowered to make the appointment of the petitioner and the petitioner has no right to pray for continuing to remain in service.

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It is settled that a person seeking the issuance of a writ of mandamus is to satisfy the existence of a statutory or public duty cast upon the respondent against whom the said writ is directed. Alongwith a public duty cast upon the respondents, the petitioner has to show the existence of a corresponding right in him and unless these two conditions are satisfied, the requisite foundation for the issuance of writ of mandamus cannot be said to be existing. The facts narrated hereinabove clearly show that no powers vested in the respondents to legally order the appointment of the petitioners to the posts, nor any right exists in favour of the petitioners for which a command be issued for enforcement of their proclaimed right. The appointments made by the Chairman or any member of the Committee cannot be equated with an order of appointment by the Committee, a corporate body. As no orders were passed by the Competent Authority, the petitioners have no right to continue to hold the posts beyond the period for which they were appointed, and have no right to seek regularisation of their service or issuance of a command to the respondents to allow them to continue to hold the post till the selection is made, by issuance of fresh orders of ad hoc appointments in their favour with usual breaks. In similar circumstances, while rejecting the plea of the petitioner, this Court while deciding writ petition No. 854/1992 entitled Ashaq Hussain v. State of J&K and others on 3.3.1993, held :

"....Recruitment Board, having statutory existence. In this case the Board had not selected the petitioner. He has been appointed only on the recommendations of the District Development Officer, who happened to be the Chairman of the aforementioned Board. In any case the appointment of the petitioner has not been made on regular basis.

In order to succeed in a writ of mandamus, the petitioner has to establish a legal right in him and the corresponding legal obligation in the authority to grant the relief claimed. In the present case the petitioner served for 8/9 months in stop gap arrangement. He was not selected by the statutory Selection Board. By serving for 8/9 months, the petitioner has not acquired any right to continue on the post........"

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The Supreme Court in Director, Institute of Management Development, U.P. v. Smt. Pushpa Srivastava, 1992(3) SCT 742 (SC) : (AIR 1992 S.C. 2072) , held :

"where the appointment is purely on ad hoc basis and is contractual and by efflux of time, the appointment comes to an end, the person holding such post can have no right to continue in the post. This is so even if the person is continued from time to time on 'ad hoc' basis for more than a year. He cannot claim regularisation in service on basis that he was appointed on ad hoc basis for more than a year."

6. Reliance of learned counsel for the petitioners on 1985(3) SLR 548 misplaced inasmuch as in that case the Supreme Court was considering the grant of salary to ad hoc teachers for the period of summer vacation and their entitlement to maternity and medical leave. Their Lordships, however, observed,

"The Policy of ad hocism followed by the State Government for long period has led to the breach of Articles 14 and 16 of the Constitution. Such a situation cannot be permitted to last any longer. It is needless to say that the State Govt. is expected to function as a model employer."

The Supreme Court in that case directed the State Govt. to take immediate steps to fill up in accordance with the relevant rules the vacancies in which the teachers appointed on ad hoc basis were working and allow those teachers to hold the posts on ad hoc basis till the vacancies are duly filled up. It was noticed that the petitioners in those cases had been holding the posts on ad hoc basis for a number of years.

Similarly in Shrawan Kumar Jha and others v. State of Bihar and others, 1993(3) SCT 747 (SC) : 1992(6) SLR 718 , the Supreme Court considered the case of an employee who was appointed by the Distt. Superintendent of Schools and his appointment was cancelled by the Govt. on the ground that the former had no authority to make such appointments. The Supreme Court held that such appointment could not be terminated without compliance of the principles of natural justice. The facts of the case disclose that the Distt. Superintendent of Education, Dhanbad by his order dated 28.5.1988 appointed the appellants therein as Asstt. Teachers and directed them to join the specified schools by July 4, 1988. Vide order dated 2.11.1988 by Dy. Development Commissioner, cancelled the appointment of the appellants on the ground that the Distt. Superintendent of Education had no authority to make the appointments. As no opportunity was afforded to the petitioners before termination of their services, the order of the Dy. Development Commissioner was set aside. However, in the instant case, the petitioners have not been substantively appointed, nor their orders of appointment have been cancelled before the expiry of the period for which they were appointed on stop gap arrangement.

8. Similarly in Rajbinder Singh v. State of Punjab, 1988(1) SLR 351, the Supreme Court observed that the practice of the management to appoint fresh people every time on ad hoc basis with the object of depriving their vacation salary was not proper and directed the respondents to allow those teachers to continue in service till regular selection is made by the Public Service Commission.

9. In 1987 KLJ 521 this Court set aside the order of termination of the services of the petitioner who was held to be in service though on ad hoc basis for a period of over two years. The Court in that case referred to Govt. Order No. 1636-GDU of 1984 dated 1.9.1984 and found, on facts,

"From the perusal of the Govt. order mentioned above it is clear that the post filled on ad hoc basis had to be referred to the concerned Recruitment Board immediately and till the time a final selection is made by the said Board, ad hoc appointees had to continue to hold the ad hoc appointments except such ad hoc appointments made for specific periods against leave vacancies."

The petitioners in these cases have not referred to any such Govt. order nor such order is stated to be in existence requiring the reference of their cases to the Govt. or Recruitment Boards. Even, on facts, none of the petitioners has been said to be holding the post on ad hoc basis as they were appointed only for a limited period as a stop gap arrangement.

10. Learned counsel for the petitioners have submitted that as a reference has been made in Writ Petition No. 424/90 to a Division Bench, for consideration of the point raised by them in these cases and that a number of other petitions have been allegedly admitted wherein interim relief has been granted, no effective judgment should be passed. The submission is without any basis inasmuch as the reference of a case to larger Bench or admission of the writ petition or passing of an ex-parte direction, does not deprive this Court from passing effective orders particularly when the matter stands already adjudicated on merits in a number of writ petitions.

11. Similarly the submission of learned counsel for the petitioners that the Distt. Development Commissioner, who has made the appointments was declared to be the Head of the Department under item No. 34 Schedule-IV of the J&K Civil Services Regulations, his orders are required to be implemented. The plea is again without any basis inasmuch as the petitioners in all the cases have already taken the benefit of the orders passed in their favour and cannot insist for the issuance of a direction to the respondents to continue their services on the basis of the orders earlier issued in their favour though for a limited period and as a stop gap arrangement. It is well settled proposition of law that the person seeking the issuance of a writ of mandamus is required to satisfy the Court the existence of a statutory right in his favour and corresponding obligation upon the respondent-authorities.

12. In view of what has been stated hereinabove, all these petitions are dismissed as having no merit. It is, however, directed that no person shall henceforth be appointed on the posts held by the petitioners on the ad hoc basis or as stop gap arrangement. The aforesaid posts shall be filled up only on substantive basis. If, however, any post is required to be filled up on temporary basis the case of the petitioners shall be only considered for such posts. All the interim directions issued in the case shall stand vacated thereby disposing of connected C.M.Ps.

13. Before parting with the judgment, I would like to observe that the Chief Secretary of the State may get a probe held into the circumstances under which the petitioners were appointed and allowed to continue to hold the posts by the persons and the officers who had no authority to make such appointments. This observation is being particularly made in view of the statement of learned counsel for the respondents that in the district of Doda alone, 50 such appointments were made against about 25 posts only.

Order accordingly.