Govt allows deptts to fill ‘critical posts’ through ‘Executive Orders’

Jammu, Feb 16: In a significant order, the J&K government has allowed its administrative departments to issue “Executive orders” for filling the gaps in existing recruitment rules or where there are no formal recruitment rules in place, for specified critical posts.

The government has also permitted the departments to act on such “Executive Orders issued already” as a one-time exemption for a period of six months only within which recruitment rules should be finalized or revised by the respective departments as per the prescribed procedure.

This permission has been granted in supersession of instructions notified vide Circular No 20-JK(GAD) of 2023 dated July 19, 2023, following the advice of the Department of Law, Justice and Parliamentary Affairs which advocates that “Executive instructions can be taken recourse to in extraordinary cases and situations, where the recruitment rules are deficient and silent on certain matters or subject.”

As per the advice, the departments have been asked to “identify critical posts for which there is an immediate need for notifying methods of recruitment or to fill gaps in the recruitment rules with proper justification and rationale for the purpose of issuing Executive Orders.”

It has been ordered that the departments will, henceforth, seek prior concurrence of ARI & Trainings department as well as Law department before submission of proposals relating to 'Executive Orders' for consideration of competent authority with proper justification.

The ARI & Trainings department will issue guidelines along with a check-list for considering such proposals to be submitted by the administrative departments for seeking concurrence.

“The authority competent to approve the “Executive Orders” shall be the same as has been defined for approval of formulation of recruitment rules in terms of Government Order No. 810-JK(GAD) of 2020 dated September 1, 2020. The Finance Department shall reconsider its advisory issued vide No FD-Code/106/2021-03-698 dated March 25, 2023 and not deny concurrence to referral of such critical vacancies to recruiting agencies where method of recruitment has been notified in the form of Executive Orders,” the order specified.

Earlier the Finance department had issued circular instructions vide No FD-Code/106/2021-03-698 dated March 25, 2023, wherein it was enjoined upon all the administrative departments to seek concurrence for referral of such vacancies only for which recruitment rules had been formulated and not on the basis of Executive Orders. General Administration Department, in amplification of the above advisory of the Finance Department, had advised all the departments to take all necessary steps for finalizing the recruitment rules of the services or cadres and to desist from amending the recruitment rules through Executive Orders.

However, a few departments reported that in absence of formal recruitment rules, the method of recruitment for a number of critical vacancies had been notified through 'Executive Orders'. Besides, there were some critical vacancies for which there was an immediate need to revise methods of recruitment as per the administrative requirements and as such the departments might be allowed to amend their recruitment rules through Executive Orders as a one-time exemption.

Following it, the matter was examined, taking into account the concerns expressed by the administrative departments and having regard to the fact that such critical vacancies could not be left unfilled as the same was not in the interest of public well-being and also that the formulation of recruitment rules involved inter-departmental consultations, for which considerable time was required as per the prescribed procedure.

The matter was, then, referred to the Department of Law, Justice and Parliamentary Affairs for opinion with regard to legality of the Executive Orders and whether such Orders could be issued or acted on for filling the gaps in the existing recruitment rules as also for such posts for which there were no recruitment rules in place.

On consideration of the matter, the Department of Law Justice and Parliamentary Affairs vide U.O No Ld-SL/52/2023 dated 01.02.2024 advised, “The Executive instructions can be issued by the government, in exercise of its executive powers, to fill these deficiencies and gaps, so that the provisions of the rules are supplemented. The Executive instructions can also be issued where no recruitment rules have been notified so that these instructions partake the character of the recruitment rules and fulfill the purpose until the rules are duly notified.”

“As such there is no legal impediment in the proposal of GAD for requesting the Finance Department to reconsider the circular instructions and provide one time exemption to the departments to issue executive instructions for regulating conditions of recruitment in specified cases keeping in view the above stated factors, parameters and stipulations. However, every action of the government should invariably be seen as just and proper and a uniform approach is to be incorporated and imbibed in all such actions, so as to avert discriminatory results,” the Law department opined. It also advised that the competent authority for approving such executive instructions could be decided by the General Administration Department so that all the cases were decided on uniform and equitable grounds and a consolidated and detailed proposal in this behalf was submitted for consideration and approval.