V.K. Jhanji, J.
1. This order shall dispose of writ petitions-SWPs No. 2377/01 and 2944/01.
2. In these writ petitions, challenge is to two orders dt. 28th May’ 01, appointing Sh. Shah Nawaz Ahmad, S/o Siraj-ud-Din Shah, R/o Ashmugam, Tehsil, Pehalgam, District Anantnag, as Research Officer in the pay scale of Rs. 7450-11500/- and Arshid Hussain Mir, S/o Sh. Ghulam Hassan Mir, R/o Salar, Anantnag, as Conference Co-ordinator in the pay scale of Rs. 6700-10700/- in Sher-I-Kashmir International Conference Centre (here-in-after referred to as SKICC).
3. Initially, the maintainability of the writ petitions was questioned on the ground that SKICC is a Society registered under the Registration of Societies Act and its functioning is governed by its Board of Governors, has its own Bye-laws and is not an authority or instrumentality of State under Article 12 of the Constitution of India, and therefore, writ jurisdiction cannot be invoked.
4. On 17th March’ 04, official respondents were directed to produce the record of appointment of aforementioned two respondents, as the allegations made in the writ petitions were that the appointments have been made contrary to the recruitment rules and for extraneous considerations. In pursuance to the aforesaid order, respondent-SKICC produced the record of appointment but did not produce the record in regard to the constitution and Bye-laws of the Society. On 15th Sept’ 04, learned counsel for SKICC was again asked to produce the record which was to include the statement regarding revenue generated from various sources at the time of registration of the Society and subsequent thereto. Pursuant to the said directions, the SKICC has produced the record which shows that SKICC was formally inaugurated in April 1984 with the aim and object to promote convention tourism by organizing national/international conferences and conventions, national/international exhibitions, management development programmes, sales meetings, symposia and seminars. The SKICC complex was constructed over the State land by the Project Organisation headed by the Project Director (a wing of Public Works Department) and the entire expenditure was met by the Government. Initially, for SKICC, the Government vide its Order No. 1292-GAD of 1981 dt.19th May’ 81, created one post of Administrative Officer and two posts of Orderlies. At that time, SKICC had a separate Directorate and the funds were made available by the Government. The drawing and disbursing powers were with the Project Director, SKICC. In May’ 84, the Jammu and Kashmir Tourism Development Corporation Ltd., was appointed as an agency of the State Government for management and operation of SKICC. This was done vide Government Order No. 37-TSM of 1984 dt. 29th March’ 84. The budget under non-plan/plan was continuously received from the Government under Head No. 339-Tourism.
In the year 1985, vide Government Order No. 166-GD of 1985 dt. 16th Jan’ 85, the Government nominated Jammu and Kashmir Tourism Development Corporation as the agency of the State for management and operation of SKICC and it was made a full fledged department. In January 1986, the said Corporation was appointed as the operating agency of SKICC vide Government Order No. 1-TSM of 1986 dt. 1st Jan’ 86, and it was mentioned in the said order that SKICC shall continue to be the property of the Government. In Feb’ 88, SKICC was converted into a registered society Under the Jammu and Kashmir Societies Act, vide Government Order No. 13-TSM of 1988 dt. 5th Feb’ 88. The Bye-laws of the Society were framed. As per the Memorandum of Association, the Chief Minister of the State was the Chairperson of the Society, whereas the other members were the Principal Secretary to the Chief Minister, Commissioner/Secretary to Government, Finance Department, Commissioner/Secretary to Government, Tourism Department, Additional Director General (Tourism), Government of India, Director Tourism, Jammu and Kashmir, Managing Director, J&K Tourism Development Corporation and one Muzaffar Ali. The Chief Minister of the State was made the chairman of the Governing body to whom the management of the affairs of the Society was entrusted under Section 3 of the J&K Societies Registration Act, 1988. The other members of the Governing body were Principal Secretary to the Chief Minister, Commissioner/Secretary to Government, Finance Department, Commissioner/secretary to Government, Tourism Department, Managing Director, J&K TDC and Director of Tourism, J&K. However, in July’ 2003, vide Government Order No. l28-TSM dt. 7th July’ 03, SKICC, as a Society was dissolved and the assets of the Society were transferred to the Jammu and Kashmir Tourism Development Corporation Ltd., which is again a Government controlled Corporation.
5. Learned counsel appearing for SKICC fairly admitted that SKICC is continuously being funded by the State till date. The budget received in the form of non-plan/plan till date, have been annexed with the statement which clearly proves that SKICC is financially, functionally and administratively controlled by the State Government. The Society is thus an instrumentality of the State within the meaning of Article 12 of the Constitution of India. Reference in this regard may also be made to decision of the Supreme Court reported as Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors., (2002) 5 SCC 111. This being so, the learned counsel for respondent-Society did not press the objection with regard to the maintainability of the writ petitions and in my opinion rightly so.
6. Petitioner Farooq Ahmad is stated to have obtained Bachelor’s Degree in Forestry, Master’s Degree in Business Administration (MBA-Spccialisation in Marketing), and Post Graduate Diplomas in Ecology and Environment and in Computer Management. Petitioner No. 2 Dalip Kumar has obtained Bachelor’s and also Master’s Degree in Arts with Diploma in Computer Sciences. It is stated by them that they are eligible for competing for appointment against the post of Research Officer and Conference Co-or-dinator respectively in SKICC, but the said Society in total disregard of the Constitution mandate of Articles 14 and 16, appointed Shah Nawaz Ahmad and Arshid Hussain Mir, as Research Officer and Conference Co-ordinator, thereby not only infringing the fundamental rights of the petitioner but also showing total disregard to the law laid down by the Supreme Court in its various judgements.
7. Official respondents have stated that to streamline the functioning of the Society, Shah Nawaz Ahmad and Arshid Hussain Mir, were appointed by the Director, SKICC, strictly on merits. It is stated that on the date of appointment of Shah Nawaz Ahmad and Arshid Hussain Mir, there were no recruitment rules and the Director, SKICC, made the appointments of the aforesaid persons under delegated powers but subject to the ratification by the Board of Governors, which ratified the said appointments on 13th Aug’ 01. Respondent-Society has denied that there is any violation of fundamental rights of the petitioner.
8. Respondent Shah Nawaz Ahmad, in his counter affidavit has stated that after obtaining MBA degree from Bangalore University, he was appointed as Marketing Executive in Bajaj Auto Ltd in the year 1997-98, and thereafter he was appointed as Assistant Manager (Incharge Marketing) in a five star hotel namely Woodstock Hotel, Pehalgam. Further according to him, SKICC needed a well qualified and experienced person in order to promote and achieve the objects of the Society and on the basis of his qualification and experience, he was appointed as Research Officer and subsequently his appointment was ratified by the Board of Governors of the Society. It is stated by him that in absence of any recruitment rules, SKICC had the power to make appointment with the approval of Board of Governors, and therefore, his appointment is not illegal.
9. Respondent Arshid Hussain Mir, in his counter affidavit has stated that in order to run the Society properly and effectively, he was appointed as Conference Co-ordinator and put on probation for a period of two years and subsequently on the basis of his performance and dedication, the Board of Governors of the Society ratified his appointment as such. It is stated by him that as at the time of his appointment in SKICC, there were no recruitment rules, therefore, his appointment cannot be said to be contrary or in violation of any service rules.
10. The record relating to appointment of Shah Nawaz Ahmad, shows that he made an undated application to the Chief Minister of the State, seeking appointment against any suitable vacancy in any department. His application submitted to the Chief Minister, reads as under: —
The Honorable Chief Minister
Jammu & Kashmir
Sub:- Appointment against any suitable vacancy in any Department
With due regards and reverence, I want your kind attention for the following lines.
That, I am unemployed youth belonging to lower middle class family, hailing from Socially and educationally backward area. (Certificate enclosed).
I have strived hard and faced lot or hardships during my academic career, to complete my M.B.A.(Marketing) three years back, I was working with Bajaj Auto Ltd. Bangalore, extreme family obligations compelled me to come back to Kashmir, because of my mother’s Sudden death. I had to look after my old aged ailing father, being his only son.
I have two years experience of working as teacher in Jawahar Navodaya Vidyalya (Aishmuoam), one year experience of working as Marketing executive for Bajaj Auto Ltd. Bangalore, where I did my project work as well. One year experience of working as Asstt, Manager(in charge marketing) with Hotel wood stock Pehalgam, besides this at present I am serving as Incharge publicity J&K ECO friends an N.G.O. working for Environmental awareness.
Esteemed Sir, keeping in view the above facts, I am sure that your humble self will provide me an opportunity to dedicate my capacities and abilities for my State J&K in particular and for my country in general.
Thank you Sir,
Shah Nawaz Ahmed
S/o Siraj-u-din Shah
R/o Iram Colony
11. On the aforesaid application submitted by Shah Nawaz Ahmed, the Chief Minister made a note to the Chief Secretary on 25th Jan’2001, which reads as under:
Kindly examine his case he may be good for
The Chief Secretary of the State, on the same application, then endorsed a note to the Director, SKICC on 30th Jan’01. This reads as under: —
“Please let me know.
12. In pursuance to the above notes, sanction was accorded to the appointment of Shah Nawaz Ahmed, as Research Officer in SKICC on 25th May’01. He was put on probation initially for a period of two years and the said appointment was subject to confirmation by the Board of Governors of SKICC, which confirmation, as indicated above, was later on accorded by the Board of Governors.
13. In case of Arshid Hussain Mir, he also made an undated application to the Chief Secretary of the State, requesting for appointment in J&K Tourism Development Corporation or SKICC. His application reads as under:
"Arshid Hussain Mir Qtrs Residence: L-5 Govt. PRO to MOS (Home) Tulsi Bagh. Srinagar Worthy Chief Secretary J&K Government. Respected Sir,
With all humble expressions and reverence I request for my appointment in the J&K Tourism Development Corporation or SKICC for managerial exposure aimed at promotion and development of tourism and other related activities. I base this request on the basis of experience and having worked in multinational resorts including star hotels in and outside the state. During turmoil period mid of 90s I had an occasion to associate handling conference arrangements outside the state aimed at building of peace and tranquility in the trouble torn state of Jammu and Kashmir. The activities were also aimed at promotion of tourism despite odds and insecure security scenario prevailing in the valley.
In late 90s. I had an occasion to seek appointment as Public Relations Officer to Hon’ble Minister of State, Home and till date I have worked to the entire satisfaction of the Hon’ble Minister. The jobs assigned during this tenure were of administrative, official and public liaison in this important ministry. I believe and I am sure that assistance rendered by me to the Hon’ble Minister has been of great use.
I am originally a science graduate with rural background and belong to village Sallar, Pehalgam. Having been brought up in the tranquil and serene natural beautiful atmosphere of Pehalgam neighbored by places like Oddu, Kolhi Glaciers, The childhood with this backgrounds inspired me for working for development of tourism and related activities. In light of this I request for appointment in your organization and allow me to serve the interests of the state in general and attainment of targets of J&K TDC in particular by achieving excellence aimed at resolution of the jobs set for my aim in life under your dynamic and able leadership.
Thanking in anticipation.
Arshid Hussain Mir
S/o Gh. Hassan Mir
14. On the margin of the said application, the Chief Secretary endorsed a note to the Director, SKICC, on 22nd April’ 01, as under: –
“May please examine and let me know. Dir. SKICC”
15. It appears that pursuant to the said note, sanction was accorded to the appointment of Arshid Hussain Mir, as Conference Co-ordinator in SKICC in the pay scale of Rs. 6700-10700/-. The appointee in this case was again put on probation initially for a period of two years and the appointment was also subject to the confirmation by the Board of Governors of SKICC. Subsequently, the said appointment was also ratified by the Board of Governors.
16.1 have heard learned counsel for the parties and have carefully gone through the record of the case.
17. Learned counsel for respondents, as indicated above, raised an objection to the maintainability of the writ petitions as according to them, petitioners do not have any locus to challenge the impugned orders. It was submitted that since appointment of Shah Nawaz Ahmed and Arshid Hussain Mir, were made purely in exigencies of the situation, petitioners could not challenge the expediency that was involved in such appointments.
18. Petitioners on the other hand, submitted that they are duly qualified and eligible for being considered for appointment as Research Officer and Conference Coordinator in SKICC but it without taking recourse to the recruitment process has selected respondents Shah Nawaz Ahmed and Arshid Hussain Mir against the said posts thereby denying the petitioners an opportunity of competing against the said posts and thus violating their fundamental rights as guaranteed under Articles 14 and 16 of the Constitution of India.
19. Equality before law and equal opportunity of consideration for selection and appointment to a public post is one of the most precious rights guaranteed to every eligible candidate under Articles 14 and 16 of the Constitution. No amount of administrative maneuvering or machination can thwart or defeat this right guaranteed to a citizen. If it is shown by a claimant that his rights under Article 14 and 16 have been sought to be defeated, then he has the constitutional mandate and Redressal of his grievance. In the present case, the petitioners pray that the impugned orders be quashed and the official respondents be directed to make selection to the aforementioned posts after considering all eligible candidates. They do not seek a relief that they alone should be considered. The prayer made by them is line with the positive concept of Articles 14 and 16 of the Constitution of India. Therefore, it cannot be said that they do not have any locus to maintain these petitions. This objection, therefore, is not sustainable.
20. Learned counsel for the petitioners submitted that appointments of Shah Nawaz Ahmed and Arshid Hussain Mir, for all purposes are backdoor entries, and therefore, their appointments cannot be sustained on any ground whatsoever.
21. At the outset, it may be observed that recruitment is a process by which an eligible person is appointed to a public post. It involves determining the source of recruitment; laying down the qualification for recruitment; inviting applications from eligible candidates and making selection from amongst the applicants. Admittedly, in this case, the appointments of Shah Nawaz Ahmed and Arshid Hussain Mir, were made against the posts of Research Officer and Conference Coordinator in SKICC without laying down the qualification; nor the posts were advertised; nor all other eligible candidates were allowed to compete against the said posts. Articles 14 and 16 of the Constitution of India guarantee right to every eligible citizen of the country to seek consideration for appointment under the State or instrumentality of the State. In Managing Director, U.P. Warehousing Corporation and Ors. v. Vijay Narayan Vajpayee, AIR 1980 SC 840, their Lordships of the Supreme Court, taking note that the Government, its agencies and instrumentalities, Corporations set up by the Government under statutes and Corporation incorporated under the Companies Act, own by the Government, have become the biggest employers in the country, held as under: —
“.that there is no good reason why, if the Government is bound to observe the equality clauses of the constitution in the matter of employment and its dealings with the employees, the Corporation set up or owned by the Government should not be equally bound and why, instead such Corporations could become citadels of patronage and arbitrary action.”
It was further held that: —
“.in a country like ours which teems with population, where the State, its agencies, its instrumentalities and its Corporations are the biggest employers and where millions seek employment and security, to confine the applicability of the equality clauses of the Constitution, in relation to matters of employment, strictly to direct employment under the Government is perhaps to mock at the Constitution and the people.”
22. The manner in which appointments of Shah Nawaz Ahmad and Arshid Hussain Mir have been made, clearly shows that they were made not on merit but on extraneous consideration. These appointments being violative of Articles 14 and 16 of the Constitution, are thus liable to be quashed.
23. In view of the above, the writ petitions are allowed. Appointments of Shah Nawaz Ahmed and Arshid Hussain Mir, as Research Officer and Conference Coordinator in SKICC, are quashed. Official Respondents are directed to initiate the process of selection against the aforementioned posts and the same be concluded within a period of six months from today. Till the selection process is over, the aforementioned private respondents shall be permitted to continue against the posts held by them. They would, however, be entitled to compete with others in the fresh selection process against the said posts pursuant to the advertisement notice which would be issued in this regard by the competent authority, In case, respondents-Shah Nawaz Ahmed and Arshid Hussain Mir, have become overage or may become overage, then the conditions of age would be relaxed in their favour. In case, fail to get themselves selected, they will make way for fresh selectees.
24. Writ petitions shall stand disposed of in the manner indicated above.
No order of costs.