Underscoring that “public employment is not a bounty in the hands of the state which can be distributed arbitrarily”, the High Court has ruled that any person appointed by the backdoor should go by the same door.
The court observed that the statutory rules and legislative enactments for regularisation of services of backdoor appointees “cannot overcome the constitutional mandate”.
“Devising ways and means to overcome the constitutional mandate, sometimes by issuing statutory rules and sometimes by coming up with legislative enactments is nothing but a calculated fraud on the constitution,” a bench of Justice Sanjeev Kumar said.
The state, the court said, should appreciate the constitutional mandate before coming up with statutory rules, executive orders and the legislative enactments providing for regularisation of services of the backdoor appointees.
The bench at Jammu wing made the observations while dismissing writ petitions seeking regularisation of services of persons who were engaged as daily wagers for 89 days in the department of food, civil supplies and consumer affairs.
The court said during the past few decades it has been witnessed that the successive governments, for cheap political motives, have adopted a unique modus operandi to play fraud on the Constitution.
The motive, the court said, is to first recruit handpicked candidates on account of their political affiliations and proximities and then engage them on ad hoc, contractual, temporary and daily wage basis on the pretext that such arrangements are needed to meet the exigencies.
“These persons are thereafter continued from time to time and till the government comes up with a policy of regularisation of the services of such persons,” the court observed.
“Whatever be the mode adopted by the government to regularize these temporary, ad hoc, contractual and daily wage employees, picked up arbitrarily other than by holding a fair process of selection and providing fair opportunity to the eligible candidates, is nothing short of fraud on the constitution,” the court said.
Referring to the appointment of the petitioners, the court pointed out that the appointments were made “in the teeth of the settled legal position adumbrated by the Supreme Court in a number of judgments.”
While the court observed that the state needs to understand that “public employment is not a bounty in the hands of the state which can be distributed by it arbitrarily and at its whims and caprice,” it said and added that it is incumbent upon the state to refrain from acting in a manner which is not countenanced by law.
“The government has initially appointed the petitioners on ad hoc basis for 89 days only and thereafter without there being any statutory rules or legislative enactments providing for regularization of such ad hoc employees, it straightway offered them substantive appointments in the state without holding any selection process and without providing any opportunity to the other eligible candidates to compete for such posts,” it said.
Observing that the manner in which the petitioners have been provided employment in the State is apparently a fraud on the constitution, the court said: “Their first engagement on temporary basis was arbitrary as they were handpicked, not on the basis of any rational criteria, but probably due to their political affiliation or access in the corridors of power.”
Underlining that no public notice was issued for making such appointments, the court said “otherwise also, they were engaged on stop gap basis for 89 days.”“They had no right to continue beyond the aforesaid period of 89 days”.
The government, the court said, instead of conferring status of permanent employee on the petitioners by way of regularization as it had been doing earlier, straightway appointed the petitioners on substantive basis and put them on probation in terms of Rule 11 of J&K, Food and Supplies (Subordinate) Service Recruitment Rules, 1972.
“The substantive appointment was not backed by any government order, statutory rule or legislative enactment but was a result of sheer arbitrary action and colourable exercise of power by the then Director, CAPD,” the court said.