Once initial engagement is by incompetent authority, services can’t be regularised: HC

Srinagar, Mar 19:  The High Court of J&K and Ladakh Tuesday held that “once the initial engagement of a candidate is not by the competent authority, his services cannot be regularised”.

A bench of Justice Rajnesh Oswal said this while dismissing a petition by a person against his disengagement order, who on the recommendation of the then Minister for PHE, Irrigation, Flood Control, and Tourism of the erstwhile state of J&K was engaged in Municipal Committee Baramulla as consolidated worker vide order dated April 12, 2008.

After a few months when the petitioner was disengaged, the order of his disengagement was rescinded in 2010 after he approached the court.

A fresh order of his disengagement from services was issued on June 1, 2022.
In his plea, he challenged the order of his disengagement and sought regularisation of his services. In his plea, he claimed that his wages were also released.

The petitioner questioned the order dated June 1, 2022, because he had been appointed on consolidated wages and was not holding any substantive post.

“Right from the year 2008, the respondents utilised his services for more than 14 years. So, they could not be allowed to shun out the petitioner illegally and arbitrarily and that too without affording any opportunity of hearing to the petitioner,” the petitioner’s counsel argued.

The counsel submitted that the petitioner had been condemned unheard and the order of his disengagement was passed to defeat the earlier orders passed by the court in the writ petitions preferred by the petitioner.

In its response to the plea, the government said that public employment was a national wealth and all eligible candidates had a right of consideration for being selected and appointed.

“An equal opportunity for competing for employment is guaranteed by the constitutional scheme as mandated in terms of Articles 14 and 16 of the Constitution of India,” it said.

The government said that the order of disengagement was issued under the communication dated May 25, 2022, after examining the records of the case.

The government said that the petitioner was, in fact, a backdoor appointee and he was engaged just on the recommendation of the then minister, which had resulted in the denial of the opportunity to participation in the selection process for engagement to the other eligible candidates.

It said that once the officer who engaged the petitioner was not having the competence to engage him, the petitioner could not claim any right to continue at the post.

“There is substance in the submissions made by learned counsel for the respondents (government) that the engagement of the petitioner even on a consolidated basis has resulted in denial of opportunity of participation in the selection process to other eligible candidates,” the court said.

“There is not even an iota of doubt that the petitioner has been engaged just on the recommendations of the minister without any selection process.”

The court said: “Otherwise also it is settled law that once the initial engagement of a candidate is not by the competent authority, his services cannot be regularised. Once this court has concluded that the initial engagement of the petitioner was not by law, he cannot be allowed to continue to work with the respondents.”

Dismissing the petition against the disengagement order, the court held that there was no illegality in the order passed by the respondents.