KHURSHID AHMAD MIR Vs. STATE OF J&K

JUDGEMENT

(1.) BY medium of this writ petition, a writ of mandamus is sought to require the respondents to allow the petitioner to continue on the post of an orderly till appointment is made substantively. The order of appointment may be noticed:

(2.) A plain reading of the order reveals that the respondent No. 2 was fully alive to the fact of non availability of the post of Orderly. It is also very clear from the order itself that the services of the petitioner were otherwise also available to the Guest House yet the respondent No. 2 has made the appointment. The course opted for by the respondent No. 2 does not appear to have originated from any exigency of service much less public interest. Conversely, it is an endeavour on the part of the Deputy Commissioner to bestow a favour of a regular pay scale upon the petitioner notwithstanding non availability of the post.

(3.) THE petitioners claim to continue on the post till it is substantively filled up needs to be appreciated in the light of the fact that substantive appointment on the post could only be possible if the post would be available. Text of the aforementioned order relied upon by the petitioner makes it abundantly clear that appointment of the petitioner is on no post, obviously his prayer to allow him to continue on the post of orderly till it is filled up is bereft of any reason, justification or legal substance. Moreso, it is a matter of common knowledge that an appointment cannot be made without existence of a post. To be specific, existence of a post for substantive or adhoc appointment is a condition precedent. Admittedly the post of orderly is not vacant. It being so, continuation of the petitioner on a non existent post is out of question, therefore, not entitled to the relief prayed for.