FIDA HUSSAIN Vs. STATE OF J&K

JUDGEMENT

(1.) THE case of the petitioners in brief is that they started working as Junior Assistants on adhoc basis for a period of 89 days in the first instance from 14.12.1991 vide order No. EDOK/600 and have continued to work in this capacity till date. In support of this contention they have placed on record Annexures p2 to p21. The above stated annexures show that their engagement was continued from time to time. Chief Education officer has given certificates of experience (Annexure p24 and p25) which show that their work and conduct remained satisfactory and they had also gained the experience of maintaining the record and preparation of bills, accounts, etc.

(2.) THROUGH the medium of this petition, writ in the nature of mandamus is prayed commanding the respondents to regularise their services against the post which they have been presently holding without giving any break and release the pay dues and other benefits in their favour. In support of his argument, learned counsel has cited AIR 1991 SC 2088. In this case the apex court directed the State to consider the case of regularisation of those petitioners who were working on adhoc basis before making direct recruitment. The counsel has also cited the case of Uttam Singh Vs. State of J&K (AIR 1998 KLJ 626). In this case it is held that an adhoc employee has also got the right of regularisation. His case cannot be worse than a daily rated worker.

(3.) MR . M.I. Qadri, SAAG learned counsel for the respondents has contented that the post of Junior Asstt., is a selection post and has to be filled up by direct recruitment in accordance with the J&K Education (Subordinate Service) Recruitment Rules, 1979. The method of recruitment has been provided by direct recruitment and this method cannot be substituted by any back door entry by giving the post to adhoc employees, which is not an appointment in the eye of law and it is only a temporary appointment in terms of rule 14 of J&K Civil Services (Classification, Control and Appeal) Rules, 1956. In terms of this rule, the temporary appointment cannot exceed for six months. The appointment of petitioner Fida Hussain made vide order No. DEOK/1934 on 27 -11 -1992 at the initial stage clearly stipulated that he will have no legal claim or right for further extension in the adhoc arrangement or regularisation at the time of final selection. He accepted this appointment with these terms and conditions and on the same basis the other petitioner namely, Mohmmad Yasin also accepted his appointment. In the order of appointment, clearly it was stated that the post was to be filled up by the State Service Recruitment Board. The petitioners has participated in the regular selection and failed. Now, they cannot claim a back door entry. In support of this plea the learned counsel has cited AIR 1995 SC 413, and in this authority order removing an adhoc employee from service was held as legal when he appeared thrice in the departmental examination but failed. It was held that regularisation of service of an adhoc employee is not automatic. In AIR 1997 SC 975 it was held that mandamus cannot be issued to regularise the service made in contravention of law.