Deputy Secretary To Government vs Basharat Saleem & Ors
2021 Latest Caselaw 1677 j&K/2

                                                                             Serial Nos. 36 & 39
                                                                          Supplementary Cause List


         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR

                                                            Dated: 27th of December, 2021.



i) LPA No. 183/2021; CM No. 8446/2021; Caveat No. 2046/2021:

Deputy Secretary to Government, Board of School Education & Ors.

                                                                         ... Appellant(s)
                                        Through:
                                  Mr M. I. Dar, Advocate.

                                          Versus
Basharat Saleem & Ors.
                                                                       ... Respondent(s)

Through: -

Mr A. M. Dar, Senior Advocate with M/s Bhat Shafi & Danish Majid Dar, Advocates; and Mr Aijaz Ahmad Chesti, Advocate.

ii) LPA No. 185/2021; CM No. 8484/2021; Caveat No. 2107/2021:

Ghulam Hassan Wani ... Appellant(s) Through:

Mr A. M. Dar, Senior Advocate with M/s Bhat Shafi and Danish Majid Dar, Advocates.

Versus Basharat Saleem & Ors.

... Respondent(s) Through: -

Mr M. I. Dar, Advocate; and Mr Aijaz Ahmad Chesti, Advocate.

CORAM:

Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Mohd. Akram Chowdhary, Judge (JUDGMENT) Magrey; J (Oral):

01. Since both these appeals, being LPA No. 183/2021; and LPA No.

185/2021, are directed against the common Order dated 14th of December,

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

2021 passed by the learned Single Judge in WP (C) No. 1946/2021, we

propose to decide the same by medium of this Judgment hereunder.

02. The brief facts leading to the filing of these two appeals, as come

to the fore from the perusal of the pleadings on record, are that the Jammu and

Kashmir Board of School Education (for short 'the Board') issued Order No.

411-B of 2021 dated 20th of September, 2021, whereby one Ghulam Hassan

Wani, Deputy Secretary (Retired), was appointed as Consultant in the Board

for a period of one year from the date of his joining on the monthly

consolidated remuneration of Rs.35,000/- without any allowances. Feeling

aggrieved by the said Order, the Writ Petitioners/ Respondents herein,

claiming to be the office bearers of the Employees Association, filed a Writ

Petition bearing WP(C) No. 1946/2021 before the learned Single Judge,

wherein they sought quashing of the appointment of the said Ghulam Hassan

Wani on the grounds detailed out in the Petition. The learned Single Judge, in

terms of Order dated 14th of December, 2021, while admitting the Writ

Petition to hearing, stayed the operation of the Order of appointment of the

said Ghulam Hassan Wani dated 20th of September, 2021. Subsequent thereto,

two appeals have been filed before this Court challenging the Order dated 14th

of December, 2021 passed by the learned Single Judge: one filed by the Board

bearing LPA No. 183/2021; and the other filed by the said Ghulam Hassan

Wani registered as LPA No. 185/2021.

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

03. Today, when this matter was taken up for consideration, Mr

Aijaz Ahmad Chesti, the learned Counsel for the Writ Petitioners/

Respondents herein, raised a preliminary objection with regard to the

maintainability of these appeals by submitting that the Order in question is

interim in nature, thus, not amenable to challenge under Clause 12 of the

Letters Patent. It is submitted that the Writ Petitioners have prayed for a 'Writ

of Quo Warranto' in the Writ Petition and, therefore, they need not to satisfy

the Court regarding violation of any right and can, as ordinary citizens,

approach the Court for seeking relief through mandamus. The learned

Counsel, in this behalf, has referred to and relied upon judgment passed by

the Madhya Pradesh High Court in case titled 'Rajender Kumar Chandanmal

v. Government of State of MP & Ors.: (S) AIR 1957 Madhya Pradesh 60 (V

44 C 31 July)'.

04. Mr M. I. Dar, the learned Counsel representing the Board/

appellants in LPA No.183/2021, submitted that the impugned Order passed

by the learned Single Judge amounts to grant of final relief in favour of the

Writ Petitioners/ Respondents herein, notwithstanding the fact that the Writ

Petitioners had no locus standi to challenge the order of appointment of a

retired employee as Consultant by the Board. It is further submitted that law

is settled to the effect that in case an interim Order passed by the learned

Single Judge has the scope of granting the final relief in favour of a party,

then, in such eventuality, the said Order can become the subject matter of the

jurisdiction of the Letters Patent Bench. In order to buttress his argument, the

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

learned Counsel has referred to and relied upon the law laid down by the

Division Bench of this Court in case titled 'State of JK v. Dr. Gh. Hassan

Hajini: 1997 (2) SLJ 374', wherein the Division Bench has, while taking

support from the Judgment of the Full Bench of this Court in 'SLJ 1982 J&K:

M/s Astral Trade V. M/S Haji Mohammad Shaban Dar & Ors.', held that

the interlocutory orders which decide matters of moment or affect vital and

valuable rights of the parties and which work serious injustice to the party

concerned would tantamount to Judgments under Letters Patent. The learned

Counsel, on merits, has contended that none of the rights of the Writ

Petitioners stood violated with the appointment of a retired employee as

Consultant which would have warranted them to approach the Writ Court and

that the entire litigation is aimed at harassing the administration at the hands

of the office bearers of the Association. It is averred that the decision has been

taken by the Board as a matter of policy in order to ensure smooth running of

the Institution.

05. Mr A. M. Dar, the learned Senior Counsel, representing the

appointee/ appellant in LPA No. 185/2021, submitted that the Order passed

by the learned Single Judge has the effect of deciding the issue in such a way

which materially and directly affects the final decision in the main case,

therefore, the Order can certainly be put to challenge in terms of Clause 12 of

the Letters Patent. It is contended that the Board required the services of the

appellant, who served the organization for a long period of time and finally

retired as Deputy Secretary on 31st of August, 2021, and keeping in view his

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

unblemished service career, honesty, experience, expertise, dedication to job

and work culture, coupled with the interest of the Organization, the Board

recommended his case for appointment as Consultant, whereafter the said

recommendations were accepted by the Administrative Department,

culminating in issuance of appointment order of the appellant for a period of

one year on consolidated remuneration. It is argued that the appointment of

the appellant, in no way, affected the rights and interests of any other

employee.

06. We have heard the learned Counsel for the parties; gone through

the pleadings on record and have considered the matter.

07. The first and foremost issue which requires to be dealt with by

us before coming to the merits of the case of the parties is whether the Order

passed by the learned Single Judge is amenable to jurisdiction under Clause

12 of the Letters Patent. In this behalf, what requires to be stated is that the

law is that if an order affects the merits of the controversy between the parties

in the case at any stage of the proceedings, it amounts to Judgment within the

meaning of the Letters Patent Law and that an appeal can be competently filed

against the same. In case titled 'Shah Babulal Khimji v. Jayaben D. Kania &

Anr., AIR 1981 Supreme Court 1986', it has been clearly provided that

whenever an Order decides a controversy which affects the valuable rights of

one of the parties, it must be treated as a Judgment within the meaning of the

Letters Patent. True it is that all interlocutory orders may not be regarded as

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

Judgments, but those which decide matters of moment or affect vital and

valuable rights of the parties and which cause serious injustice to the party

concerned would amount to Judgments under Letters Patent. Looking at the

instant case from the perspective of the aforesaid legal position, the learned

Single Judge has, in terms of the Order impugned, virtually granted the final

relief sought in the Petition by staying the operation of the Order of

appointment of the retired employee as Consultant/ appellant in LPA

No.185/2021. Besides, the order of appointment of the appellant was only for

a period of one year on consolidated basis, meaning thereby that the time was

of great essence in the said process of appointment and, by staying the

appointment, the entire process got stalled thereby defeating the very object

of the decision taken by the Board. In these peculiar facts and circumstances,

we are of the considered view that the appeals have been competently filed

under Clause 12 of the Letters Patent.

08. Let us now proceed to test the validity of the impugned Order

passed by the learned Single Judge staying the appointment of the appellant

in LPA No. 185/2021 made by the Board. The learned Counsel appearing for

the appellants, in both these appeals, have vehemently contended that the

Petition filed by the Writ Petitioners/ Respondents herein was primarily aimed

at harassing the administration of the Organization inasmuch as none of their

rights stood violated with the appointment of the appellant in LPA

No.185/2021 as Consultant on consolidated basis for a period of one year. It

was contended that none of the rights of the Writ Petitioners was violated with

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

the appointment made by the Organization which would have warranted them

to file the Writ Petition.

09. We have considered the aforesaid submission made by the

learned Counsel for the appellants and, upon perusal of the pleadings on

record, including the Writ Court record, we find force in the said submission

made by the learned Counsel. It is not forthcoming as to what locus the Writ

Petitioners/ Respondents herein had to file the Writ Petition as against the

appointment of a retired employee as Consultant on consolidated basis made

by the Board. The Writ Petitioners/ Respondents herein have not substantiated

before the Court as to which of their right, muchless a fundamental right, was

alleged to have been violated or is being violated with the aforesaid

appointment by the Board. The learned Single Judge, before entertaining the

Writ Petition and passing the order of stay thereon, ought to have satisfied

itself with regard to the locus standi of the Petitioners in filing the Writ

Petition. It is settled legal position that a 'Writ of Mandamus' is issued in

favour of a person who establishes a legal right in himself. A 'Writ of

Mandamus' is issued against a person who has a legal duty to perform, but

has failed and/ or neglected to do so. Such a legal duty emanates from either

in discharge of a public duty or by operation of law. The 'Writ of Mandamus'

is of a most extensive remedial nature. The object of mandamus is to prevent

disorder from a failure of justice and is required to be granted in all cases

where law has established no specific remedy and whether justice, despite

demanded, has not been granted.

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

10. The Hon'ble Apex Court of the country, while dealing with the

scope of 'Mandamus', in case titled 'State of Kerela V. Smt. A. Lakshmikutty

& Ors.; (1986) 4 Supreme Court Cases 632', at Paragraph No.34, has

observed as under:

"34. We must refer to the case of Mani Subrat Jain v. State of Haryana & Ors., (supra) which was relied upon by learned counsel for the State Government. It is well-settled that a writ of mandamus is not a writ of course or a writ of right, but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, there- fore, the Court will only enforce the performance of statu- tory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. Applying the principles stated in Halsbury's Laws of England, 4th edn., vol. 1, paragarph 122, this Court observed that a person whose name had been recommended for appointment as a District Judge by the High Court under Art. 233(1) had no legal right to the post, nor was the Governor bound to act on the advice of the High Court and therefore he could not ask for a mandamus. It was observed:

"It is elementary though it is to be restated that no one can ask for a mandamus without a legal right.

The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of persons for appointment. If the names are recommended by the High Court it is not obligatory on the Governor to accept the recommendation.

The consultation of the Governor with the High Court does not mean that the Governor must accept whatever advice of recommendation is given by the High Court. Article 233 re- quires that the Governor should obtain from the High Court its views on the merits and demerits of persons selected for promotion and direct recruitment."

The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of mandamus. The present trend of judicial opinion appears to be that in the case of non-selection to a post, no writ of mandamus lies."

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

11. Again, in the case of 'State of UP & Ors. V. Harish Chandra &

Ors.; (1996) 9 Supreme Court Cases 309', at Paragraph No.10, the Hon'ble

Supreme Court has held thus:

"10. Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the Court came to hold that the list does not expire after a period of one year which on the face of it is erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But so mandamus can be issued to direct the Government to refrain from enforcing the provision of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, it any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the Appointing Authority from a select list even after the expiry of one year from the data of selection but such illegal action of the Appointing Authority does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they approached the High Court. We may not be understood to imply that the High Court must issue such direction, if the writ Petition was filed before the expiry of the period of one year and the same was disposed of after the expiry of the statutory period. In view of the aforesaid conclusion of ours it is not necessary to deal with the question whether the stand of the

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

State Government that there existed one vacancy in the year 1987 is correct or not."

From the perusal of the law laid down above, it is crystal clear

that existence of a right is the foundation of the jurisdiction of a Court to issue

a 'Writ of Mandamus'. In the case on hand, the Writ Petitioners/ Respondents

herein have not been able to show as to which of their right has been violated

by the Board with the appointment of the appellant as Consultant on

consolidated basis for a period of one year, which could have been directed to

be enforced by way of issuing a 'Mandamus' from the Court. In this context,

the irrefutable conclusion which can be drawn is that none of the rights of the

Writ Petitioners/ Respondents herein stood violated by the Board in the

process of appointing the retired employee as Consultant on consolidated

basis for which a 'Writ of Mandamus' can be issued in their favour.

12. It is also pertinent to note here that the Writ Petitioners/

Respondents have assailed the decision of the Board in appointing a retiree

employee as a Consultant on consolidated basis for a period of one year. This

appointment, on the part of the Board, is clearly a policy decision of the Board

keeping in view the interests of the Organization as well as the suitability for

the post in question and same, in no circumstance, can be said to be arbitrary

or violative of any of the rights of the Writ Petitioners/ Respondents herein.

The Board, in this behalf, have all the expertise in such administrative matters

and it is, ordinarily, not proper for the Court to sit in appeal over their

LPA No. 183/2021; CM No. 8446/2021; & Caveat No.2046/2021 c/w LPA No. 185/2021; CM No. 8484/2021; & Caveat No. 2107/2021

decisions, unless, of course, it is something totally arbitrary or shocking,

which is not the eventuality in the case on hand.

13. Viewed in the above background, both these appeals are allowed

and the impugned Order dated 14th of December, 2021 passed by the learned

Single Judge is set aside. Consequently, having dealt with the merits of the

case of the parties in the Writ Petition hereinabove and in view of the

discussion made thereon, the Writ Petition filed by the Writ Petitioners/

Respondents herein, being WP (C) No. 1946/2021, is taken on board and shall

stand dismissed along with all pending CMs therewith. Interim direction(s), if

any subsisting as on date, shall stand vacated. Caveat Nos. 2046/2021 and

2107/2021 shall stand discharged accordingly.

14. Registry to place a copy of this Judgment on both these appeals

as well as on the record of the Writ Petition bearing WP (C) No.1946/2021.

                  (Mohd. Akram Chowdhary)                             (Ali Mohammad Magrey)
                               Judge                                            Judge
           SRINAGAR
           December 27th, 2021
           "TAHIR"
                               i.    Whether the Judgment is reportable?         Yes/ No.
                               ii.   Whether the Judgment is speaking?           Yes/ No.




TAHIR MANZOOR BHAT
2021.12.28 16:26
I attest to the accuracy and
integrity of this document