TMI Blog1993 (12) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged in several writ petitions by Dr Vinay Rampal, appellant in C.A.. of 1993 (arising out of SLP No. 13043 of 1993) and others. For regular recruitment when applications were invited, the recruitment also came to be challenged. The respondents in turn filed writ petitions for directions to regularise their services. The learned Single Judge by his judgment dated September 19, 1990 declared that the appointments of respondents should be in accordance with the Jammu and Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979 (for short 'the Rules'). The Government neither have power to relax the rules of recruitment nor have power to regularise the appointment of Respondents I and 2 on regular basis. Accordingly he quashed their appointments. The appointments of the other respondents were also quashed as being ultra vires of the Rules. However, he directed their continuance in the posts for a period of three months thereafter and the Government was directed to fill up the posts of lecturers on permanent basis as per the Rules through the Public Service Commission within three months from the date. The respondents were permitted to apply for regular recru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o conduct its functions under Section 133 of the Jammu and Kashmir Constitution (Article 320 of the Constitution of India), any direction to make recruitment is in derogation of the Constitution. The Rules do not provide any power to regularise the services of ad hoc doctors. The direction, therefore, is clearly de hors the law. Shri P.P. Rao, learned senior counsel, sought to support the impugned decision on two grounds. The ad hoc appointments, though strictly are not according to the Rules, by virtue of their long service for over four years and by now seven years, the respondents gained enough experience. Equally they settled their lives in the service, and so they are entitled to be regularised. The non-appointment of them is also denial of the service to the society. Dr A.K. Jain case' provides not only the norm but also ratio under Article 141 which the High Court has rightly followed in giving the impugned directions. It is notorious that the regular recruitment takes unduly long period. The Rules prescribe three years' experience as a condition for appointment as lecturer and unless ad hoc appointment has been made, it is difficult to have requisite experience. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... administrative and (iii) general. The service shall consist of such posts and classes and categories and such number of them to be determined by the Government from time to time. At the commencement of the Rules on September 19, 1979, the existing posts, classes and categories were specified in Schedule-I. Rule 4 provides membership of the service. The members of the service shall be such persons as are appointed to the service under the Rules . The proviso says that the members continuing immediately before the Rules under Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1974 shall be deemed to have been appointed to the corresponding posts in the service specified in Schedule-II. Clause (b) of the explanation to Rule 4 provides that for the purpose of this Rule any persons appointed to any post in service only by virtue of such deputation, contract, or ad hoc appointment, shall not be members of the Service . Thereby it is clear that unless a member either appointed under 1974 Rules and continuing as such or appointed to the service in accordance with the Rules, be shall not become a member of the service. The Explanation (b) expressly amplifies that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but such ad hoc appointees, by virtue of such appointment only do not become members of the service. It would appear that Rule 25 of CCA Rules read with Rule 4, Explanation (b), claimed to be the source of power to make ad hoc appointments. Rule 25 speaks of temporary promotion for short duration of three months but it does not appear to be a direct source of power for initial ad hoc appointment. A contention was raised and accepted by the Division Bench that the State under Article 162 of the Constitution has power to exercise executive power to make ad hoc appointments. 7.Existence of statutory rules is not a condition precedent to appoint an eligible and fit person to a post. The executive power is co-extensive with legislative power of the State and under Article 162, the State can create civil posts and fill them up according to executive instructions consistent with Articles 14 and 16 of the Constitution. It is settled law that once statutory rules have been made, the appointment shall be only in accordance with the rules. The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but only supplement the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t shall not be necessary for the President or the Governor, as the case may be, to consult the PSC in respect of any service or post in connection with the affairs of the Union or the State, as the case may be, either in general or in particular class or classes or any particular circumstances, but clause (1) of Article 320 postulates that it shall be the duty of the PSC to conduct examinations for appointment of service of the Union and the service of the State, respectively, and to assist the State for recruitment to any service for which the candidates fulfilling the qualifications are required. Though it is settled law that consultation is not mandatory but as held by this Court in Jatinder Kumar v. State of Punjab (1985) 1 SCC 122: 1985 SCC (L S) 174: (1985) 1 SCR 899 that the establishment of an independent body like PSC, is to ensure selection of best available persons for appointment to a post to avoid arbitrariness and nepotism in the matter of appointment. Commission is constituted by persons of high ability, varied experience and of undisputed integrity and further assisted by experts on the subject. Whenever the Government is required to make an appointment to a high pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that he is fit to be appointed; I dispense with the rules of recruitment and probation and appoint A straightaway to the service in a substantive capacity as Assistant Conservator of Forest. ' Therefore, it was held that rule of relaxation cannot be exercised in matters of recruitment. It would be only to remove undue hardship that the power to relax the conditions of service should be exercised and rules relating to recruitment of the service should not be relaxed. In Syed Khalid Rizvi v. Union of India 1993 Supp (3) SCC 575: 1994 SCC (L S) 84 (C.A. No. 823 of 1989 etc. dated November 20, 1992), it was reiterated that appointment to a post in accordance with the Rules is a precondition and the conditions of the rules of recruitment cannot be relaxed. Rule 3 of the Residuary Rules, though empowers the Government to relax the rules, it cannot be availed nor have power to relax conditions of recruitment. In A.K. Bhatnagar v. Union of India (1991) ISCC 544: 1991 SCC(L S) 601: (1991) 6ATC 501 this Court held that from among temporary appointees, those selected by UPSC became seniors according to the merit determined by the PSC and the non-selectees would become juniors to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their claim to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Articles 14 and 16 and in violation to the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the Constitution and the law. 11.This Court in Dr A.K. Jain v. Union of India' gave directions under Article 142 to regularise the services of the ad hoc doctors appointed on or before October 1, 1984. It is a direction under Article 142 on the peculiar facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 - power is confided only to this Court. The ratio in Dr P. P.C. Rawani v. Union of India (1992) 1 SCC 331: 1992 SCC (L S) 309: (1992) 19 ATC 503 is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularise the ad hoc appointments had become final. When contempt petition was fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eservation. If a temporary or ad hoc employee continued for a fairly long spell, the authorities must consider his case for regularisation provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State. It is to be remembered that in that case, the appointments are only to Class-III or Class-IV posts and the selection made was by subordinate selection committee. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularisation be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned Single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules. 12.It is difficult to accept the contention of Shri Rao to adopt the chain system of recruitment by notifying each year's vacanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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