Mehbooba Akhter v. State And Others

1. In this writ petition the order of termination of services of the petitioner has been challenged by her, inter alia, on the following grounds:

(1) That she was appointed by the Government as Supervisor in the Social Welfare Department on the basis of being physically handicaped on adhoc basis for a period of six months or till selection is made by the State Recruitment Board, whichever is earlier, on 17-7-1982,

(2) That her services were extended by the Government from time to time as the selection could not be made by the Board.

(3) That for some time no extension was granted in her services by a specific order, but even then she was allowed to continue on her post.

(4) That lastly, she was terminated from her services on 10-9-1984 though selection Board had not meet by then.

(5) That she moved several representations to the Government against the order of termination of her services, but her grievance was not redressed and she had therefore no choice but to file the writ petition.

Despite numerous opportunities no counter affidavit was filed by the respondents and, therefore, the averments made by the petitioner on an affidavit have remained un-rebutted.

Heard learned counsel fer the parties. The file was also thoroughly examined.

The short point to be determined in this writ petition is whether the Government could terminate the services of the petitioner even before the selections are made 'by the State Recruitment Board, as she had been appointed on adhoc basis till such selections are made.

2. The learned Government Advocate argued that the appointment of the petitioner was to last only for six months or till the selection was made by State Recruitment Board, whichever was earlier. Her services were continued from time to time by the specific orders of the Government, till a decision was taken by the Govt. on 1-9-1984 that all adhoc appointees shall be terminated from services. According to him, an adhoc appointee has no right to continue on a post beyond the peripd specified in the order.

3. The learned counsel for the petitioner on the other hand argued that the petitioner has to continue in her services on adhoc basis till the State Recruitment Board makes selection, to the post. As the Board has not made any selection to the said post till date, therefore, the termination of her services was un-constitutional.

4. In the background of the arguments advanced at the bar, it cannot be denied that basically the petitioner was appointed because of her physical disability. This fact is clear in the very appointment order. Even, her upper age limit was relaxed by the Government on that very ground. She was allowed to continue on the post by virtue of various Government orders from time to time till the Government Order No. 1636-GD of 1984 dated 1-9-1984 came to be passed, which is reproduced, as under, for ready reference:

"GOVERNMENT OF J&K GENERAL DEPARTMENT"

Subject:- Listing of ban.

GOVT. ORDER NO. 1636-GD of 1984

Dated 1-9-1984.

It is hereby ordered fhat:-

(i) The ban imposed on filling up of vacancies as per instruct­ions issued under No. 6225-CS/84 dated 17-7-1984 be removed.

(ii) Where interviews have already been held by the Recruit­ment Agencies in the past and selections made, respective departments should make the appointments immediately and where the interviews have been conducted and selections not made, the concerned Recruitment Authorities should finalise the selections immediately and communicated select list to the concerned department for appointments. Remaining posts which have not so far been rilled up shall be notified by the concerned departments to the respective Recruitment Board who should advertise these immediately and hold interviews at the earliest.

(iii) Posts which have been filled on adhoc basis shall also be immediately referred to the concerned Recruitment Boards by the concerned department, if not already done. Till the time of final selections by the Recruitment Boards, the adhoc appointees will continue to hold the adhoc appointments as per rules and regulations goveining the same. This will not apply to adhoc appointments made for specified periods against leave vacancies etc. the service of such officials will be terminated as soon as their adhoc term expire.

By order of the Government of J&K.

Sd/- Dy. Secretary to Government

General Department

No. GD/MTD/RB/56/84 Dated: 1-9-1984"

In pursuance of the above mentioned order, the petitioner's services came to be terminated on 18-9-1984. This is clear from the endorsement made on Annexure "G" of the writ petition, which is dated 18-9-1984, whereunder the petitioner was directed to hand-over her charge to Super­visor Zone "D".

5. From the perusal of the Government order mentioned above, it is clear that the posts filled in on adhoc basis had to be referred to the con­cerned Recruitment Boards immediately and till the time of final selections by the said Boards, the adhoc appointees had to continue to hold the adhoc appointments except such adhoc appointments made for specific periods against leave vacancies.

6. The petitioner, admittedly, was not appointed against a leave vacancy. She was appointed against a substantive post which is still lying vacant, as alleged by the petitioner on an affidavit which stands un-rebutted. Moreover, her appointment was made on the basis of the physical dis­ability and, as such, there was no reason to terminate her services on the basis of the above, , mentioned Government order, which was not at all applicable to her. Admittedly, the petitioner has a right to be considered alongwith other eligible candidates for being appointed against the post she held till the termination of her services on adhos basis. Her continuance on adhoc basis on the said post would not give her any preferential right. But the right to be considered is fundamental right vested in her as and when the selection is made by the respondents for the said post. Her appointment on the basis of physical disability had to continue till the selec­tion to her post is made. The very purpose of her adhoc appointment appears to be the same, when the Board makes the selection to the said post, she has a right to be considered at that time. If she for any reason is not selected by the Board, her adhoc appointment will cease then and there and not otherwise and in no case before that, Her ouster before such selection is, therefore, against the very letter and spirit of the order whereunder she was appointed. When she was appeinted for six months or till such time when the selection is made, it implies that within the said period selection was to be made by a method provided by the respondents. It is none of her fault that the selections were not allowed to be made by the respondents and she cannot be allowed to suffer for their omissions or commissions. The words "whichever is earlier" in the order of appointment also lose significance in such peculiar circumstances of the case. In this view, I am supported by two Division Bench decisions of this court in writ petition Nos. 168 of 1984 and 976 of 1985, whereunder it has been held that if an adhoc appointee is absorbed on the condition that she will continue till selection is made, such appointment is to continue till such selection is made.

7, The learned Government Advocate lastly argued that the writ petition must fail on the basis of laches and acquiescence also, as her services were terminated in September, 1984 and she has come to the court by medium of this writ petition on 17-5-1986 only.

8. The perusal of the various annexures to the writ petition shows that the petitioner has been making representations to the Government and to other concerned authorities against the order impugned, which have remained un-redressed. At long last, , she had no alternative but to knock at the doors of the court. Moreover, if the order impugned suffers from inherent lack of jurisdiction and has occasioned breach of any fundamental right or is against the very canons of natural justice, the rule of laches and acquiescence'cannot be allowed to come in the way of the court un-doing such wrong in the interests of justice,

9. In these circumstances of the case, the writ petition is allowed. The order impugned terminating the services of the petitioner shall be allowed to continue on the post which she held on adhoc basis befdre the passing of the order impugned, till selection to such post is made by the competent authority. However, her continuance on the said post in such capacity will not give her any preferential right over other eligible candi­dates before the selection authority. She shall be considered alongwith other eligible candidates as and when the selection to the said post is made by the competent authority. The petitioner is also held "to be entitled to receive the salary dues for the period she has worked in the department i. e till 18-9-1984 only. Though the order impugned has been quashed, but she is not held to be entitled to any emoluments for the period she has not worked in the department after 18-9-84, as she was only an adhoc appointee. The petitioner shall, however, be entitled to costs assessed at Rs.500/-only.

The writ petition is, accordingly, disposed of. The file shall be con­signed to records.

Srinagar 11-3-1987

Sd/- Hon'ble "Rizvi J"