HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. 64 OF 2007 AND LPASW No. 61 OF 2007 1.Shamma Bhat 2.Nirmala Devi & ors Petitioners Parvinder Kumar Leharia & ors. Respondent !Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta, Advocate ^M/s. Tashi Rabstan & D. S. Thakur, Advocates Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice Honble Mr. Justice Sunil Hali, Judge. Date: 11.10.2010 :J U D G M E N T :
Dr. Saikia, CJ:
Heard Mr. Sunil Sethi, learned Senior counsel assisted by Ms. Veenu Gupta,
the learned counsel for the appellants as well as Mr. Rajneesh Oswal, learned
counsel representing the respondents.
2. By consent of the parties, both these appeals are taken up for final disposal,
as the issue raised in both the appeals is common, based on almost similar facts
situation.
3. Judgment and order dated April 10, 2007, rendered by the Writ Court in
SWP no. 1520/2004 is under challenge in both these Letters Patent Appeals.
The appellants herein were engaged by the Board of School Education vide its
order no. 483-B of 2004 dated June 23, 2004 to do Desk Job for a transitory period
of 60 (sixty days) on consolidated salary of Rs. 1900/- per month providing that the
initial engagement should be extended from time to time depending on the need
and satisfactory accomplishment of the Job.
These engagements were challenged by the writ petitioners-respondents herein on
the ground that appointments were bad, illegal and in total violation of established
norms of service jurisprudence. The Writ Court by the impugned judgment and
order accepted the writ petition and quashed the engagements of all the appellants
holding that engagements of appellants were unjustified and unwarranted inasmuch
as no administrative fairness was displayed in making such engagements.
Being aggrieved by findings recorded by the learned Single Judge so as to cause
disengagement of the appellants, these appeals have been preferred.
We have heard learned counsel for the parties at length. The entire records so placed
before us by the learned counsel appearing for the official respondents have also
been closely scrutinised.
On thorough examination of the records, it is found that no norms as required and
necessary under the law have been followed for such selection. Even the
recommendation of the Interview Committee, as has been recorded in its order
dated 483-B of 2004 dated June 23, 2004, have also not been found in the record.
Moreso, the recommendation made by the Committee also did not reflect any marks
given by the Committee against those candidates. Besides, we find no other records
to demonstrate that appellants were adjudged better in merit to the other
candidates.
Mr. Sethi, learned Senior counsel has forcefully submitted that all the appellants had
duly appeared in the interview and they got selection in the due process in
accordance of law. As regards non-marking to show the merit of the appellants, it is
further submitted that if no marks were being given, it is not the fault of the
appellants, who have been duly engaged on their proper interview.
On careful examination of the records, we are disinclined to approve the
submissions of the learned Senior counsel.
Having considered the impugned judgment, we fully agree with the findings
recorded by the learned Single Judge in arriving at the impugned decision. For
better appreciation of the reasons assigned in the impugned judgment, we feel it
necessary to reproduce the relevant portions of the same which are as under:
Perusal of the selection record of the Board of School Education indicates that
interview for engagement of persons for Desk and Menial Jobs had been conducted
by a Committee constituted of M/s. H. K. Gupta, Joint Secretary Administration, I.
K. Kotwal, Accounts Officer and Chand Rani, Joint Secretary Administration, on
26th /28th of February, 2004 when out of 103 candidates applying for the Desk Job
and 300 candidates applying for the Menial Jobs, only 87 had appeared for the
Desk Job and 230 for the Menial Jobs. The selection records contain a copy of order
No. 483-B of 2004 dated 23rd of June, 2004, a note sheet shown to have been
singed on 10th June, 2004 and an unsigned list of candidates who had applied for
the Desk/Menial Jobs in the Board of School Education with some notings on the
list of 24th of February, 2004.
There is nothing in the records to indicate as to how the Committee
had assessed the merit of the candidates who had appeared before the Committee
on 26th and 28th of February, 2004. The Board of School Education does not appear
to have prepared any criteria for selection of candidates for the Desk and Menial
Jobs. It is not discernable from the records as to how the selection would recollect
the individual rating of the candidates who had appeared in the interview on 26th
and 28th of February, 2004, on 10th of June, 2004, i.e. after a period of more than
three months when they had prepared a note for its onward transmission to the
retiring Chairman of the Board of School Education.
The records of the Boards Education depict a dismal picture
indicating an unfair approach of the Board and its Selection Committee in playing
with the aspiration of those who had competed for the Desk Job and Menial Jobs
pursuant to issuance of Notification dated 17.2.2004. The records of the Board of
School Education further demonstrate that the Board has exceeded the quota of
posts which were required to be filled up from the candidates belonging to Jammu
District. Only one candidates Ms. Shamma Bhat, respondent No. 10, a resident of
Poonch had been selected whereas the candidates who had appeared form other
Districts had been ignored consideration for selection. I am thus constrained to hold
that the selection of private respondent Nos. 4 to 10 was unjustified for there is no
records to indicate their having been adjudged better in merit to the others who had
competed in the interview. Approval accorded by respondent No.3, the then
Chairman of the Board of School Education, who was at the verge of retirement too
demonstrates that the selection had been unfair.
Unfairness in any form whatsoever breads discontent, spreading
outrageous and, at times, rebellious ripples thereby polluting individual minds and
ultimately affecting the society adversely. Administrative heads and Selection
Authorities owe a duty to the public to act fairly. Their actions are thus required to
be transparent, fair and objective. Decisions taken by the authorities at the verge of
retirement, are seen with suspicion by the public. The authorities are, therefore,
required to act in such a manner that the confidence of public is not shaken in the
Institutions which have to decide about the recruitment of millions of unemployed
youth in the Country.
Yet another thing which come up for discussion at the time of
hearing of this petition was that the respondent-Board of School of Education had
been continuing the engagements meant only for a transitory period of 60 days and
it was admitted by the learned counsel for the parties that the engagement of the
private respondents was still continuing.
This appears to be device employed by the Board of School
Education to continue causal/temporary, engagements thereby sacrificing the Rules,
Guidelines and Instructions governing engagement of permanent, temporary or
causal employees. Casual, adhoc or temporary engagements cannot be a substitute
for regular employment de hors the Rule sin force governing such recruitment and
appointments. Causal, ad hoc or temporary engagements are permissible only for a
short period. These engagements, cannot be continued beyond the prescribed period
lest these engagements may deprive all those who may be entitled to seek
permanent employment to these positions in accordance with the Rules.
Engagement of private respondents beyond a period 60 days too is thus unjustified.
Appointment order of private respondents incorporating a clause that their
engagements would be extendable on the basis of their satisfactory performance,
was contrary to what was contained in the Notification of the Board of School
Education. This clause in the impugned Notification is, therefore, un-warranted.
The Administrative Authorities in a selection process are duty bound to demonstrate
administrative fair play. Transparency, fairness and objectivity must reflect in every
action in the selection process, so that the confidence of the public in those
Institutions is not eroded.
Given facts and circumstances, it may be well said that the present action in the
selection to the post of Desk Job lacks such transparency, fairness and
reasonableness. That being so, we can unhesitatingly opine that there is no plausible
or cogent ground to dislodge the impugned judgment.
Accordingly, both the appeals stand dismissed.
However, in our considered view, the directions given by the learned Single Judge
as regards time frame for holding fresh selection for engagement of the persons for
Desk Job needs to be extended in the interest of justice. Accordingly, we direct
that the entire process of fresh selection, as directed by the learned Writ Court, shall
be undertaken and completed within three months from today and till such fresh
selection is made, the appellants herein shall not be disengaged.
It is made clear that the authority/authorities concerned shall consider the relaxation
of age of all the parties appearing and contesting in these appeal proceedings in case
of their selection and appointment.
(Sunil Hali) (Dr. Aftab H. Saikia) Judge Chief Justice Jammu: 11.10.2010 Tilak, Secy.