VIVEK GUPTA Vs. STATE OF J&K
LAWS(J&K)-2006-2-17
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 16,2006

VIVEK GUPTA Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (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 Dated 16.10.2002 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: - S/Shri 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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