VIVEK GUPTA Vs. STATE OF J&K
HIGH COURT OF JAMMU AND KASHMIR
STATE OF JANDK
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(1.) BY this common order I propose to dispose of SWP Nos.2225/2003, 33/2003, 735/2003, 391/2003 and 1122/2005, as common question of law and facts are involved in all the writ petitions.
(2.) PETITIONERS through these writ petitions are questioning the legality of Government Order No.1263 -Edu of 2002 dated 16.10.2002,
whereby the private respondents have been appointed as Junior Assistants
against the existing vacancies in the Education Department. The
recruitment to the post of Junior Assistant in the Education Department
is governed by the J&K Educational (Subordinate Service) Recruitment
Rules. Under these Rules, the qualification prescribed for the post of
Junior Assistant is matriculation or its equivalent qualification from
any recognized University or Board of Examination with knowledge of
typing having not less than 30 words speed per minute, and source of
recruitment has been provided to be 100% by direct recruitment. While out
of 100%, 25% of the vacancies have been reserved for the employees
classified in Schedule II of J&K Civil Services Regulations, who have
passed matriculation examination and have a speed of not less than 25
words per minute in typing. The mode for making selection for appointment
is governed by J&K Subordinate Service Recruitment Rules, 1992. Under
these Rules, the Service Selection Board, constituted under the Rules is
enjoined with the duty of selection and recruitment. Non -gazetted posts
available against existing vacancies are required to be referred by the
Administrative Department to the Service Selection Board and in terms of
Rule 13, the Board is required to make selection after inviting
applications through advertisement and issue select list in the order of
merit after conducting such tests or examinations, as may be prescribed,
and if not prescribed, as it may consider necessary.
(3.) ADMITTEDLY , in the present case, the appointments of private respondents as Junior Assistants have been made by the Government without
referring the vacancies to the Service Selection Board. No advertisement
for inviting applications from the eligible candidates has been issued by
the Government or the Board. The procedure, thus, prescribed for making
selection and appointment to the post of Junior Assistant as prescribed
by the Recruitment Rules has not been followed. The appointments of
private respondents, however, have been made in relaxation of the rules.
The Government order under challenge reads as follows:
"Government Order No.1263 -Edu of 2002
Sanction is accorded in relaxation of rules, to the engagement of
the below mentioned persons against the vacant posts as Jr. Assistants in
the Schools/Offices shown against each: -
1. Shah Din Malik S/o Mohd Din Malik R/o Budhan, Tehsil Mahore, Distt. Udhampur. In the office of ZEO, Gool.
2. Mohd Nasurallah Wani S/o Abdul Majeed Wani R/o Good, Distt. Udhampur. H. S.S., Gool.
3. Mohd. Sadiq S/o Gh. Mohd Shah R/o Gool, Tehsil Mahore, Distt. Udhampur. G .H.S., Gool.
Mohd. Shafi S/o Hasham R/o Dhedah, Tehsil Mahore, Distt. Udhampur. High School Ind.
The newly engaged persons will be paid: -
(i) An amount of Rs.1200/ - per month for the first 2 years; and
(ii) Rs.1500/ - per month thereafter for next three years.
The newly engaged persons will be considered for regularization
after completion of successful tenure of 5 years.
By order of the Government of Jammu and Kashmir.
The case of petitioners is that the appointment of private respondents without advertising the posts is in violation of the rules
and, therefore, legally not sustainable. Learned counsel appearing for
petitioners submit that the appointments of private respondents are
backdoor appointments. The Government was not competent to relax the
rules and make the appointments without inviting applications from all
eligible candidates. Because of non -issuance of the advertisement for
inviting applications, the right of petitioners guaranteed to them under
Articles 14 & 16 of the Constitution for competing for their appointments
has been infringed. The order impugned, as such, is illegal and deserves
to be quashed.;
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