GH HASSAN WANI Vs. STATE OF J&K

JUDGEMENT

(1.) PETITIONER , through the medium of this petition, seek to invoke writ jurisdiction of this Court for issuance of writ in the nature of mandamus directing the respondents to appoint petitioners as Class -I V employees and allow them to join their services from the date of order and be paid salaries in implementing the order "No. 158/91/Emp dated: 15 -01 -1991 passed by respondent No. 1, which reads as under: -

(2.) THE case of petitioner depicted in narration is that their engagement/appointment as Class -IV employees in pay scale of 630 -940 in district Pulwama was approved by respondent No. 1 by virtue of order dated: 15 -01 -1991, but respondent No. 3 instead shot back communication intimating that there are no Class -IV vacancies available in district Pulwama and sought clarification and further instructions in the matter. That respondent No. 1 against addressed a letter dated: 19 -03 -1991 in advising to adjust the candidates in district Pulwama, and the latter further directed respondent No. 4 for the adjustment of the petitioners in the Government Schools, viz, Govt. High School Pastona, Govt. High School Haariparigam, Govt. Girls -High School Noorpora and Higher Secondary School Ratnipora, where Class -IV posts are lying vacant, but till the petitioners had not been allowed to join by respondent -3 and 4 and various representations made in this behalf did not yield any positive response and fruitful results. That so many other persons have been appointed by the respondents in the Education and other Government Departments in district Pulwama and the petitioners have been disrciminated against thereby denied the constitutional right of providing equal opportunities of employment guaranteed under the Constitution. No counter has been filed by the respondents.

(3.) HEARD and considered the rival contentions of the parties. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps, but the instructions cannot be and should not be supplant the law, but would only supplement the law. The executive, having made the rules governing recruitment cannot fall back upon its general power under Article 162 to make the appointment, to regularise the appointment dehors the rules. As far as appointment to the posts of Class -IV employees in Education Department is concerned, the Rules of 1979 under Notification SRO 240 dated 23rd April, 1997 prescribe direct recruitment by selection through service Selection Board specifying the mode, qualification and other requirements for eligibility. Where Class -IV employees be appointed by the executive recommendations only through a letter to whom the petitioners turn it as order dated 15 -01 -1991 despite the fact that in the penultimate para of the said letter, it is clearly indicated that the order may be issued...... the rules do not contemplate that the appointment could be made by this method also. Apart from that, executive directions in the shape of a letter for recruitment not provided by the Recruitment Rules do no accrue any right to a person.