It is really most gratifying to note that while rationally underscoring the paramount importance of most strictly adhering in letter and spirit to the avowed principles enshrined succinctly as spelt out in Article 16 of the Constitution pertaining to the public employment, the Jammu and Kashmir and Ladakh High Court has in a most learned, landmark, logical, laudable and latest oral judgment titled Ashok Kumar Vs UT of J&K in WP(C) No. 326/2021 CM No. 3348/2021 CM No. 1695/2021 CM No. 1696/2021 CM No. 5166/2021 CM No. 5169/2021 and cited in 2024 LiveLaw (JKL) that was pronounced on 22.02.2024 has ruled most emphatically and courageously that regular appointments to government posts cannot be made without following the proper procedure of issuing advertisements inviting applications from eligible candidates and conducting a fair selection process. It must be noted that while dismissing a bunch of petitions assailing the termination orders issued by the government, a Single Judge Bench comprising of Hon’ble Mr Justice Javed Iqbal Wani observed most unequivocally that, "…Any appointment made on a post under the State or Union without issuance of advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would be violative of the guarantee enshrined in Article 16 of the Constitution." Very rightly so!
Before stating anything else, it is stated even before the judgment commences that, "The instant petitions involve issues which are analogous and akin to each other, as such, are being disposed of by this common judgment."
To put things in perspective, the Bench enunciates in para 5 that, "In the instant petition, the petitioner has sought the following reliefs:-
a. Writ of Certiorari quashing order No. 165-DULBJ of 2021 dated 08.02.2021 issued by the respondent No. 2.
b. Writ of Certiorari quashing communicationNo.HUD/LSG/ULBJ/35/2020dated 25.01.2021 read with letter No.HUD/LSG/ULBJ/35/2020 dated 22.12.2020.
c. Writ of Mandamus directing the' respondents not to terminate the services of the petitioner as Computer Assistant, Local Bodies Division-I, Jammu.
The aforesaid reliefs are being sought by the petitioner on the premise that the petitioner being a graduate and having one year diploma in computer application to his credit came to be appointed as a Casual Labourer/Daily Wager in the respondents-department in terms of Order No. DULBJ/2004/6762 dated 08.11.2004 pursuant to a proposal forwarded by the respondent 3 to respondent 2 vide No. LB/Tech/2004/J-1/1186 dated 06.11.2004, whereafter the petitioner in terms of Order No. LB/Tech/J/2007/Estt/270-72 dated 24.04.2007 came to be assigned the duties of Computer Assistant by respondent 3 and also in terms of Order No. LB/Tech/J-1/2009/4807-08 dated 12.12.2009 assigned the additional charge of accounts being dealt by one Mr. Varinder Koul.
That pursuant to the recommendations made by the respondent 3, case of the petitioner came to be recommended for regularization as Computer Operator in the pay-scale of Rs. 3050-4590 against the vacant post on which post the petitioner has been working, which recommendation followed by other recommendations made by respondent 3 vide letters dated 08.04.2011 and 24.09.2011, the services of the petitioner came to be regularized as Computer Assistant by respondent 2 in terms of Order No. LB/Tech/J-1/2013/4783- 85 dated 06.03.2013.
That the petitioner prior to the filing of the instant petition and while working in the respondents-department filed SWP No. 960/2017 before this Court seeking release of payment of salary which came to be disposed of vide order dated 09.05.2017 with a direction to the respondents to release the salary of the petitioner for the period he has rendered his services which salary came to be released by the respondents vide Order No.DULBJ/2018/16834 dated 20.02.2018.
That there were no recruitment rules in place in the respondents-department and same came into being on 18.12.2008 as the Jammu & Kashmir Urban Local Bodies Institution (Management)Service Recruitment Rules, 2008.
That an FIR being FIR No. 04/2014 came to be got registered by the respondents on the allegations that the appointments/engagements have had been made in the department without following the procedure prescribed by law, as also the recruitment rules and the petitioner was wrongly shown to be beneficiary in the said FIR which FIR came to be challenged by one of the accused persons before this Court in CRMC No. 409/2018.
That the respondent 2 issued a show cause notice No. DUBLJ/2019-20/18081-82 dated 02.03.2020 to the petitioner calling upon him to show cause as to why his services be not terminated having been obtained illegally and in contravention of the rules, which show cause notice came to be replied by the petitioner, justifying therein his engagement/appointment and regularization inter-alia on the strength of the engagement/ regularization of some similarly situated employees as also report of a committee constituted for enquiring into the allegation of illegal appointments made in Urban Local Bodies, Jammu which committee in its report opined that no permanent legal appointments were made in the Urban Local Bodies Jammu Division.
That respondent 2 yet proceeded to issue Order No. 165-DULBJ of 2021 dated 08.02.2021 terminating the services of the petitioner, which is impugned in the instant petition.
The impugned order is being challenged in the instant petition almost on similar and identical grounds as are urged in WP(C) No. 326/2021 supra & WP(C) No. 349/2021 supra, as such, in order to avoid repetition and for the sake of brevity, the said grounds of challenge are not being referred herein and would be considered as grounds of challenge in the instant petition as well."
As we see, it is stated in para 6 of this notable judgment that, "Objections to the petition have been filed by the respondents, wherein the respondents also have opposed the petition on similar and identical grounds on which the aforesaid petitions WP(C) No. 326/2021 & WP(C) No. 349/2021 have been opposed, as such, in order to avoid repetition and for the sake of brevity, the said objections are not referred herein and the said objections would be considered as the objections in the instant petition as well. Heard learned counsel for the parties and perused the record."
As it turned out, the Bench then stipulates in para 7 of this remarkable judgment that, "The core issue involved in the aforesaid petitions that falls for consideration of this Court would be as to whether the orders impugned in the instant petitions have been issued by the respondents in breach of the procedure prescribed by law, inasmuch as, in violation of the rights and interests of the petitioners."
Most significantly and most forthrightly, the Bench mandates in para 8 that, "Before proceeding to address to the said issue, it is pertinent to note here that Article 16 of the Constitution which finds its place in part-III of the Constitution relating to the fundamental rights provides that there shall be an equality of opportunity for all citizens in all matters relating to employment or appointment to any office under the State, the main object whereof is to create a constitutional right to equality and opportunity of employment in public offices. Based on the said constitutional right of equality of opportunity to public employment, law has also been laid down by the Apex Court in series of judgments that the appointments to any post under the State can be made after proper advertisement has been made inviting applications from eligible candidates and holding of a selection process by a body of experts or specially constituted committee, through a written examination or interview or some other rational criteria for judging the inter-se merit of the candidates who have applied in response to the advertisement made, thus, indisputably suggesting that the regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner and that any appointment made on a post under the State or Union without issuance of advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would be violative of the guarantee enshrined in Article 16 of the Constitution."
No less significantly and no less forthrightly, the Bench then propounds in para 9 that, "Keeping in mind the aforesaid fundamental proposition and principles of law and reverting back to the case/s in hand, admittedly the petitioners herein have entered in the respondents-department without following the aforesaid procedure prescribed by law irrespective of the fact that the Rules of 2008 came into being thereafter therein the said appointments. The petitioners could not have been engaged/appointed and regularized by the respondents without taking recourse to a proper selection process by issuance of advertisement providing a fair opportunity to all eligible candidates to participate in the said selection process. The claim of the petitioners that they came to be appointed by the Govt./Higher Authority possessed with a power to appoint cannot be accepted in view of the aforesaid position of law as the appointment made by any authority, howsoever high it may be, without conducting selection process cannot, but, said to be arbitrary, illegal and violative of Article 16 of the Constitution."
It is worth noting that the Bench while citing the relevant and remarkable case law envisages in para 10 that, "The petitioners under these circumstances cannot be said to have any right much less a legal, statutory or fundamental enforceable against the respondents in the instant petitions on any grounds including that they have had been working for a considerable period of time with the respondents. A reference in this regard to the judgment of the Apex Court passed in case "Secretary, State of Karnataka and others Vs Uma Devi (3) and others" reported in (2006)4 SCC 1 would be relevant, wherein "absorption, regularization, or permanent continuance of temporary, contractual, casual, daily -wage or ad hoc employees appointed/recruited dehors the constitutional scheme of public employment has been deprecated.""
As a corollary, the Bench then propounds in para 11 that, "Viewed thus, in the light of the aforesaid analysis, it can safely be said and held that the impugned orders have been issued by the respondents against the petitioners validly and legally after following the principles of natural justice without there being violation of the rights and interests of the petitioners in the process."
Finally, the Bench then concludes by holding in para 12 that, "Resultantly, the petitions fail and are accordingly dismissed along with all connected applications."
In a nutshell, the bottom-line of this noteworthy judgment is that Jammu and Kashmir and Ladakh High Court has made it indubitably clear that awarding government jobs without following proper advertisement and selection process violates Article 16 of the Constitution. So it was but natural that the Single Judge bench comprising of Hon’ble Mr Justice Javed Iqbal Wani very rightly, robustly and rationally dismissed the bunch of petitions that had been filed assailing most strongly the termination orders issued by the Government. No denying it!
