Srinagar: The High Court of J&K and Ladakh has held that appointments made without following the process of selection recognised by law contravene the constitution and such appointments can be terminated without any notice.
The observation was recorded in a matter wherein many appointments were made to various posts, like the death & birth reporter, computer assistant, works supervisor, demolishing guard, mali and works supervisor in the Municipal Committees of Hajin, Sumbal and Bandipora.
The appointments made in 2005 and 2006 were ordered by the respective presidents of Municipal Committees “against clear vacancies” without advertising the posts and following the selection process recognised by law.
Justice Javed Iqbal Wani, after perusing the records and hearing the parties, said that the petitioners have been appointed by the respondent authorities without following the mandate of Article 14 & 16 of the Constitution.
“Under these circumstances whether issuance of a notice to the petitioners or else affording them an opportunity of hearing would have led to a different result and inference in the matter as had the respondents issued a notice to the petitioners or affording them opportunity of hearing before disengaging them, the issuance of such notice or affording them an opportunity of hearing to the petitioners on account of the admitted facts would not have changed the admitted position obtaining in the matter being that the petitioners indisputably have had been appointed against the mandate of Article 14 & 16 of the Constitution,” he said.
In 2014, the appointed persons (petitioners) filed a writ petition after facing the threat of replacement and withholding of their salary by the authorities.
The court in 2015 directed the respondents “to release legitimately earned salary in favour of the petitioners in accordance with rules governing the field”.
However, in 2017, they were disengaged by virtue of an order dated 22nd March, 2017 issued by the Director, Urban Local Bodies.
Aggrieved of the order, they challenged it on the grounds “the petitioners had been appointed in their respective Municipal Committees in the year 2005-06 and have worked for a period more than 20 years and came to illegally disengaged without issuance of a notice and affording an opportunity of hearing”.
They also pleaded that the respondents in the matter subjected petitioners to discrimination.
They said “the respondents on one hand disengaged the services of the petitioners and on the other hand engaged and allowed similarly situated appointees to continue in service”.
The respondent authorities counter-argued saying that the petitioner’s basic appointment was made against rules as well as on non-existing posts.
The petitioners came to be allowed to work illegally by the Executive Officers, the competent authority taking cognizance of the facts issued the order of their disengagement on 22nd March, 2017.
“The appointments of the petitioners had been made in breach of Section 307 of the Jammu and Kashmir Municipal Act, 2000, inasmuch as without facing any process of selection,” argued the state counsel.
The court noted that the petitioners were appointed against their respective posts by the then presidents of the respective Municipal Committees without issuing any advertisement notice thereof or subjecting the petitioners of any process of selection recognized by law.
It cited an apex court judgment which said that no person can be appointed on a temporary or ad-hoc basis without inviting applications from all eligible candidates. “If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board etc., that will not meet the requirement of Articles 14 and 16 of the Constitution”.
Referring to the plea of discrimination alleged by the petitioners viz-a-viz, similarly situated appointees in other Municipal Committees, the court said “the other orders do not lend any support to the alleged plea of discrimination to the petitioners in view of the judgment of the apex court.
