STATE OF J&K Vs. VIJAY KUMAR

JUDGEMENT

(1.) H .K. Sema, Cheif Justice 1. We have heard Mr. Gourav pachnanda, learned Additional Advocate General for appellants -State as well as Mr. K.K. kundan Learned councel for respondents.

(2.) THE admitted position in this case is that the appointment of respondent -6 in the writ petition to the post of orderly -cum -chowkidar at Kathua, has been assailed on the sole ground that the said appointment has been made without advertising the post. Accepting the said position the learned Single Judge instead of quashing the order of appointment, also directed the official respondents to fill up the post by issuing public notice within a period of three months, failing which the writ petitioner shall stand appointed on adhoc basis on the expiry of three months.

(3.) FIRST of all the writ petitioner had never participated in the selection process because the post was never notified. Secondly, legally or illegally, respondent -6 was in occupation of the post and there was no vacancy against the post of orderly/chowkidar for which the direction has been issued by the learned Single Judge to appoint the writ petitioner on adhoc basis. Such direction, if allowed to be implemented, would amount to commanding the respondent to create the post. The judicial view on this point is consistent that the direction can be issued only against the available vacancy. Since respond -ent -6 was holding the post at the time direction has been issued, there was no vacancy and therefore, such direction could not have been issued. At the same time, one illegal order can not be substituted by another illegal order. This would amount to perpetuation of illegality.