MOHD YOUSUF Vs. STATE OF J & K
LAWS(J&K)-1999-2-42
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 15,1999

MOHD YOUSUF Appellant
VERSUS
STATE OF J AND K Respondents

JUDGEMENT

- (1.) He that takes the procedural sword, shall perish with that sword." The aforesaid words of Justice Frankfurter in Vitarelli v. Seaton, 1959(3) Law Ed. 2d 1012, though said in a different context would apply to the petitioners also. They do not want the double edged procedural sword to be used against them. They came to be appointed without following due procedure but are claiming that in the matter of termination, procedural safeguards should be followed.
(2.) On the last date of retirement, the then Director Health Services issued letter of appointment in favour of the petitioner and 57 other persons. Some of them were appointed on temporary basis; others came to be appointed on stop-gap basis for a period of sixty days. This happened on 31.3.1998. Next day i.e. 1.4.1998 the new incumbent to the office of Director Health Services issued a telegram. This was to the effect that all appointment orders issued on 31.3.1998 are to be kept in abeyance. It was further indicated that this would be subject to the final decision which may be taken by the State Government. Some of the appointees approached this Court immediately after order dated 1.4.1998 was passed. Interim orders came to be issued by this Court.
(3.) The further fact is that on 12.5.1998 the Commissioner/Secretary to Govt. Health and Medical Education department passed further order. The fact that the then Director Health Services had made the appointment of 58 candidates to the various posts in non-gazetted cadre and class IV posts on the eve of his retirement was taken note of. It was observed that as these appointments were made without following due procedure which was required to be followed in the matter of making appointment to public service, the letters of appointment issued by the then Director Health Services on the eve of his retirement were cancelled with immediate effect. The orders which were ordered to be kept in abeyance on 1.4.1998 were given a final shape. The net result was that the orders of appointment were cancelled. The names of the employees who were likely to be affected by this order were mentioned in the schedule appended to the order passed on 12.5.1998. When this order was passed, some further writ petitions came to be filed in this Court. The challenge to the order passed on 1.4.1998 and 12.5.1998 is basically on the ground that before passing the order in question, the rules of natural justice were not complied with. It is urged that in the case of those petitioners where the appointment was made on temporary basis came to be governed by the Civil Service Regulations and in case their services were to be brought to an end, then mandatory requirements of Section 126 of the Jammu and Kashmir Constitution and Article 311 of the Constitution of India were required to be complied with. It is further urged that none of the petitioners have been attributed any conduct which may spell out that they were parties to any fraud. The fact that in the order dated 12.5.1998, there is no recital to the effect that the petitioners exhibited any conduct or misconduct which led the orders of appointment being issued in their favour. It is urged that in the absence of any such conclusion recorded in the order dated 12.5.1998 the services of the petitioners could not be brought to an end. It is also urged that inspite of the fact that order dated 1.4.1998 was issued, the Director Health Services Jammu permitted some of the appointees to join the services, therefore, a vested right came into existence. To summarize the arguments put across by the petitioners in the writ petitions are : (i) that those of the appointees who came to be appointed on temporary basis came to be governed by the Civil Service Regulations and in case, their services were to be brought to an end, then a show cause notice followed by procedure indicated in the statutory provisions noticed above should have been followed. (ii) that in the absence of any assertions attributing fraud or any other malpractice having been adopted by the appointees they could not be penalised by putting an end to their service tenure. (iii) that no action has been taken against the Director who had made the appointments and he has been given all retirement benefits. Thus, it is urged that as no mala fide has been attributed to the official who issued the letter of appointment and, therefore, the petitioner's services could not be brought to an end. (iv) it is also urged that the Head of the Department was the Appointing Authority and the power exercised by him could not be taken exception to.;


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