JAMMU, Oct 22: Justice Sanjay Dhar in case titled Sheraz Anjum and Others Versus State of J&K and Others, SWP No. 741/2013, along with several connected petitions has ruled that appointments made through backdoor methods or without a transparent selection process cannot be protected merely on the ground of prolonged service.
However, the court made it clear that employees whose appointments are disputed cannot be disengaged through a blanket Government order without examining the legality of their individual engagements.
Justice Sanjay Dhar upheld Government Order No. 203 RD&PR of 2018 dated August 9, 2018, directing the discontinuation of engagements made in violation of prescribed rules, norms and procedures.
The court also upheld the Government communication dated April 23, 2013, concerning an inquiry into allegedly illegal engagements and stoppage of salaries.
The petitioners contended that they had been working under MGNREGA for several years and that many had become overage, leaving them with limited alternative employment opportunities.
They argued that engagements made before the issuance of selection guidelines on December 14, 2010, could not automatically be declared illegal merely because no specific recruitment procedure had been prescribed at that time.
The official respondents maintained that several engagements had been made without following a transparent selection process and that employees appointed in violation of constitutional requirements had no vested right to continue in service.
Rejecting the argument that the absence of recruitment guidelines before December 2010 permitted appointments at the discretion of the authorities, the High Court observed that even temporary or contractual appointments must satisfy the constitutional requirements of fairness, transparency and equal opportunity under Articles 14 and 16.
Relying upon Supreme Court judgments, the court held that public employment cannot be distributed through arbitrary selection or a pick-and-choose policy. The court further clarified that although one set of contractual employees ordinarily cannot be replaced by another set of contractual employees, this principle cannot be invoked to perpetuate appointments made in violation of constitutional requirements.
Justice Dhar observed that the mere mention of recommendations by Ministers or MLAs in engagement orders would not automatically render appointments illegal if the employees had otherwise been selected through a fair and transparent procedure.
The High Court directed the authorities to conduct an in-house inquiry, allowing the concerned employees to submit representations and supporting documents, or alternatively issue individual show-cause notices before deciding whether their engagements were illegal.
The court further held that petitioners whose appointments were found to have been made through a fair procedure or in accordance with prescribed norms must be allowed to continue in service.
Their legitimately earned salaries must also be released, and fresh advertisements issued for the posts occupied by such employees would stand quashed.
However, where appointments were established to be illegal or contrary to prescribed norms, the authorities would be free to disengage the employees, who would not be entitled to wages. The court nevertheless directed that wages already paid pursuant to its earlier orders should not be recovered.
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